Primitive Law

From The Art and Popular Culture Encyclopedia

"The savage is far from being the free and unfettered creature of Rousseau's imagination. On the contrary, he is hemmed in on every side by the customs of his people, he is bound in the chains of immemorial tradition, not merely in his social relations, but in his religion, his medicine, his industry, his art : in short, every aspect* of his life. These fetters are accepted by him as a matter of course ; he never seeks to break forth. To some of them there are definite sanctions, to others none ; but he does not distinguish between them. To the civilized man the same observations may very often apply ; but the civilized man is too restless, too desirous of change, too eager to question his environment, to remain long in the attitude of acquiescence."

M an is a social being. He is never found alone,
save under the compulsion of exceptional and
temporary circumstances. In this he differs
from the higher apes, his nearest analogues in nature,
which are usually solitary or found at most in tiny
bands consisting of an adult male, his female consort,
and their immature progeny. Human beings, on the
contrary, if they separate in the search for food, flight .
from enemies, or other purposes, always rejoin the
band to which they belong at the earliest opportunity ;
and where, as frequently among the lowest races, they
habitually gather in small companies, these coalesce
either at stated times, or on summons for consultation
touching matters of conunon interest, for the perform-
ance of common rites, or for other social purposes.
Such aggregates, whether of few or many, whether
temporary or permanent, necessitate rules governing
the relations of the individuals composing them to one
another and to the aggregate, and the relations of the
^ggi^egate and of individuals composing it to siihilar

I X

2

PRIMITIVE LAW

aggregates and to alien individuals in general. With-
out these rules the assembly or the band would be a
mere agglomeration of individuals guided only by their
individual wills : it could not continue to exist.

Such governing rules are the laws which the indi-
viduals and aggregates alike obey. In the lower
culture— that is to say, among relatively primitive
peoples — ^these laws are to the present day unwritten ;
and presumably this was the case universally in archaic
times. Hence, among civilized peoples who are
accustomed to associate laws with written documents,
the rules obeyed by savage peoples have been refused
the name of laws and called only customs. But customs
that are fixed and generally obeyed are indistinguish-
able from laws. In our own country, the judges of
the King's courts have always recognized and given
effect to them as laws, though prescribed in no written
legislation. Thus modes of action and conduct which
have been followed from time immemorial by the
community, or by particular classes or districts, as
definite and proper rules for the guidance of trans-
actions, or of the relations between different sections
of the community or between individuals, have been
stamped with general approval and become part of
express law. On the same authority the resentment and
repudiation by the community, without any formal
prohibition by the sovereign, of conduct defined as
contra honos mores have been adopted, and this conduct
has been declared contrary to the public interest and
good government. Both oif the positive and the
negative sides custom has been recognized as law.

The first attempt at codifying Roman law was the
Law of the Twelve Tables, assigned to the year 450 b.c.

INTRODUCtORY

8

But nobody suggests that unwitten, but real, laws
did not exist long prior to this. Rome had then been
an independent and growing State for ages. Indeed,
we expressly hear of new laws and changes of law long
before the promulgation of the Law of the Twelve
Tables. Our own forefathers, the English of the
period called the Heptarchy, had no written laws until
after the coming of Christianity at the end of the sixth
century. The earliest written legislation by the kings
and their witan that has come down to us is obviously
nothing more than a series of attempts to supplement
and adapt to the new order of things a body of law
already of ancient date. Kent was naturally the first
kingdom to do so ; and the new laws of Kent in more
than one instance speak of their kings as thus adding
to the laws of the forefathers. The legislation of
Ina, King of the West Saxons, also presupposes the
existence of a body of laws, which it is intended
to supplement and amend. It is needless to labour
the point.

In these pages we have only to do with Primitive
Law, the rules which govern societies in the lower
culture. The word primitive must not be taken literally.
We do not know what laws governed mankind in an
absolutely primitive condition. No records remain of
that condition when human beings first emerged as
such — ^when men first became men. Of their societies,
therefore, we know nothing. We can only infer that
mankind must have been evolved from gregarious
ancestors. The process was doubtless slow and
extremely gradual; and the co-operation of numbers
was a material element in bringing about the result.
Co-operation implies a certain degree of harmony;

4

PRIMITIVE LAW

and the harmony must have been attained by some
kind of rudimentary regulation. That such regulation
was possible the examples of deer and even bees and
ants, which have not risen above the merely animal
condition, abundantly prove. Much more, then, was
it natural to creatures endowed with higher capacities,
and hence with greater possibilities of advance.
Our acquaintance with human societies begins at a
much later date. The most backward societies of men
now are at least societies of men with human needs,
human feelings, and human aspirations. It is to these,
and to societies somewhat more advanced, that anthro-
pologists apply the term primitive. Its use is neces-
sarily comparative and vague, as many terms are
which relate to the subjects or the consequences of
Evolution.

The laws of all such societies are unwritten, because
writing is unknown ; or, if it be known, not in common use.
But the laws themselves are well known. In England,
in consequence of the growing complexity of civiliza-
tion, the presumption everywhere underlying legal
administration, that every one knows the law, has
ceased for generations to correspond with the facts, and
has been expressly limited by the courts of law so as to
exclude the operation of certain details of the law of
property. In a simpler society, the difficulty cannot
arise. From his earliest days the everyday life of the
tribe is exposed to the child. He becomes acquainted
with the meaning of his surroundings, the occupations
and duties of the individuals ^composing the tribe, its
divisions and organization, as they are revealed in the
acts and in the talk of all about him. At the age of
puberty, when his understanding has sufficiently

INTRODUCTORY

5

ripened with his years, he is brought together with his
fellows of similar age under a more formal and pene-
trating discipline, in the course of which he is initiated
into the secret tribal traditions and ideals and the rules
which are to guide his life as an adult member of the
community. Thenceforth in constant communion with
the elders he profits by their knowledge and experience,
until his memory is stored and his judgment is matured
on all the questions of tribal as well as sectional and
individual rights and duties. Such a result is possible
only where the community is comparatively small, and
where its civilization is rudimentary and uncompli-
cated by the division of labour, the machinery, the
accumulation of property, the ranks and social divisions
of more advanced societies.

Primitive law — ^the law of societies we call primitive —
relates of course to rude conditions, in which culture
has made but little progress, and in which the more
elemental conditions demand little of the elaboration
rendered ever more and more necessary by expanding
civilization. On the other hand, it covers whole
departments of life that we have abandoned to the
unfettered will of the individual, or at all events dropped
from the law of which cognizance is taken by the courts
of justice. Many of these, it is true, are still governed
by our social customs, or by the rules of voluntary
societies within the body politic ; but they are matters
which do not affect foreign relations, the King’s peace
within the realm, the descent of property, the conditions
of labour, taxation, or other subjects to which in modem
days we confine the enactment and administration of
what is with us technically the law. Primitive law is
in truth the totality of the customs of the tribe. Scarcely

6

PRIMITIVE LAW

anything eludes its grasp. The savage lives more in
public than we do ; any deviation from the ordinary
mode of conduct is noted, and is visited with the repro-
bation of one's fellows. It is a common thing to
ascribe any imtoward event which may happen after-
wards to such a deviation. ‘ A man's relations with
his mother-in-law are a subject for jocularity with us ;
the community does not interest itself seriously in them,
unless he transgress the etiquette of the position with
the kitchen poker. It is otherwise with the Black-
fellows of Australia. Among the Yuin of New South
Wales a man might not even look at his mother-in-law ;
and even if his shadow fell on her it was a cause of
divorce. The tribes on the Hunter River, at the mouth
of which the thriving port of Newcastle now stands,
were more severe : to do no more than speak to her
was death.*

It is a serious offence against the law of the Ifugao
of Northern Luzon in the Philippine Islands to use
certain language or do certain acts in the presence of
one's kin of the opposite sex who are within the pro-
hibited degrees of marriage, or indeed to refer to sexued
matters save in the most delicately veiled manner.
Breach of the taboo was generally punished by social
contempt ; but in one district it rendered the culprit
liable to be punished by the lance, especially if a third

1 An instance may be given of the effect of deviation in what
we should think a very trifling matter. Among the Bantu of
South Africa *' a man must never sleep on the right-hand side
of the bed when he occupies the samelbed with one of his wives.
He must not touch her with his right hand ; if he did he would
have no strength in war, and would surely he slain,** — Rev. J
Macdonald in ** J. A. I.," XX, 140.

Howitt, 266, 267.

INTRODUCTORY

7

person were present. No one among the same people
who knows of a death may ask a relative of the dead
man if he be dead ; he who does so is punishable by
fine.^ At a death among the Arunta of Central Aus-
tralia it is the duty of all the actual and (under Arunta
law) possible sons-in-law of the deceased to cut them-
selves on the shoulder ; and to omit to do so is to render
the offender liable to punishment at the hands of some
other father-in-law, actual or possible, by forfeiture of
his wife, who will be given away to another man.*
Their northern neighbours, the Warramunga, forbid
certain foods, including the flesh of a kind of kangaroo
(Macropus robusius), to all except very old men, and
for anyone else to eat this kind of kangaroo is a grave
offence.® Among the Ewhe of the Slave Coast of West
Africa the most absolute tolerance prevails with
regard to the worship of the gods, and it is considered
quite natural that opinions should differ concerning
the choice of a god. Sacrileges or insults to a god,
however, are always resented and punished by the
priests and worshippers of that god, it being their duty
to guard his honour.” ^ Do we pity or despise these poor
savages and barbarians for the importance they attach
to such trifles ? In the fifteenth and sixteenth cen-
turies, on a much higher plane of civilization, we burnt
alive, by sentence of the courts, men and women for the
crime of heresy, and we compelled every one to attend
his own parish church every Sunday and ecclesiastical

holiday — a, law which was only repealed in the tenth
year of the late Queen Victoria, within the lives of many
persons yet surviving.

Some of these prohibitions and injunctions raise the
question of the sanction necessary to a law. The
subject will be considered more at large hereafter.
In the meanwhile it is enough to observe that social
contempt often carries very real penalties in the lower
culture; and even supernatural penalties, the ven-
geance of a god or the self-acting power of a taboo,
are the creation of society. The general belief in the
certainty of supernatural punishment and the aliena-
tion of the sympathy of one’s fellows generate an
atmosphere of terror which is quite sufficient to prevent
a breach of tribal customs, such as would be held to
account for a personal or tribal calamity.

Tribal law does not recognize the divisions which are
found convenient in juridical discussions. The law is
one ; every part of it is equally consecrated by long
use, by religion, and by the instinctive submission of
every member of the tribe. In these stages of culture,
in the same way as the name is an essential part of the
individual, the law is an essential part of the tribe. It
is no question of aim or utility. Every portion of it
is equally binding and has the same reputed origin ;
every portion equally belongs to the traditions of the
tribe and is a sacred inheritance from the tribal ancestors.
The law is a manifestation of the tribal life, as indi-
visible as life itself. This is not to say that there is no
change, no legislation.

No one will venture to affirm that any community
has remained perfectly stationary during the centuries
or millenniums that have elapsed from its beginning.

INTRODUCTORY

9

whatever that beginning may have been. There has
been constant change, usually very slow and gradual,
and then for the most part unconscious, but at times
sudden or greatly accelerated. Contact with other
conununities, with other civilizations, with new and
unfamiliar physical environments, is among its most
obvious causes. Internal expansion, too, has led to
continual developments ; for apart from outside
influences the growth and evolution of a living organism
have been acting throughout its existence. But the
new law rests on the old foundation and speedily
becomes consolidated with it. For scientific purposes,
therefore, while we analyse Primitive Law into different
subjects, in the hope of rendering it more intelligible,
it must be always borne in mind that the “ primitive "
does not so analyse it. He accepts it as a whole, a
unity, the thought of analysing which has never entered
his head.

CHAPTER II

CONSTITUTIONAL LAW

T he first requisite of every community is to
have some sort of organization which provides
for the scat of authority, the method and extent
of its exercise, and the internal arrangements governing
the relations of its various parts. This is the consti-
tution of the society. In communities the most nearly
primitive of any now existing the constitution is of the
most elementary kind. The organization depends in.
the first place upon the food-supply and the means
of obtaining food, and next upon the foes, human and
other, with whom the community has to contend. Some
of the peoples in this condition inhabit the most remote
and inhospitable regions of the earth's surface. They
have probably been driven thither by the pressure of
tribes better equipped and more vigorous than them -
selves, In this case they may have reached in th«i
happier seats from which they have been driven t.
higher zone of civilization than they now occupy ; ancl
they may have been compelled to abandon culture
and organization unsuited to thtir present habitat anoj
condition. But although this is possible there is littlel
or no evidence of such degradation. So far as we know,|
it may be said generally that peoples in such a situation

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CONSTITUTIONAL LAW

11

show signs of having once been more civilized than
they are to-day. They may therefore be taken as
exhibiting an early type of society. Other peoples in
a low condition of culture dwelling in a land more
.favoured with the means for human habitation and
^progress have an elementary constitution in many
tespects not a whit more advanced than theirs.

Y The archipelago which we call collectively Tierra del
rfuego is inhabited by several tribes, of which little
IS scientifically known. The Yahgan are the most
southerly of these tribes. They inhabit the desolate
ishores of the Beagle Channel and the equally desolate
fislands southward to Cape Horn. They seem to have

lio tradition of ever having lived anywhere else. In

titeir bitterly cold and stormy environment the Yahgans
ajre naked savages, having at most a sealskin or a sea-
otter skin thrown over their shoulders to protect them
inf some measure from the driving gales and icy waters,
anmd which they contrive to preserve a miserable
exjUtence. In those chilly regions where little vegetable
liffe can be maintained, they extract nourishment from
aj few funguses, berries and roots, but chiefly depend
oMi the produce of the sea — ^fish, seals, molluscs, and
ilow and then stranded whales — and on the eggs of
5^-birds. This precarious life has chiefly to be passed
fin I canoes, each of which represents an independent
Uujthority, containing for the most part only a family
Aroup, commanded by the father or the most experienced
aind able seaman. Ashore they are housed in rough
vl/igwams, in which a family or two may dwell. At
tjmes they assemble in larger numbers at a fixed ren-
dlezvous, where they may remain for weeks, dividing
i^ocialistically the plunder of the seas, or whatever else

12

PRIMITIVE LAW

chance may have thrown in their way. But the dura-
tion of these assemblies is precarious ; the necessities
of life and the uncontrolled will of the chief of a family
group may bring it at any time to an end. It follows
from what has been said that the only fixed authority
recognized is that of a father over his family ; there
are no other chiefs, though an influence, real but
undefined, is exercised by experience and proved
strength, intelligence, and ability, or by the medicine-
man’s craft and skill in his management of men. A
father’s power over his wife or wives and other depen-
dants is in theory absolute; in practice it is greatly
limited by the power and independence of the women.
There is, however, no social inequality, neither slavery
nor aristocracy being recognized. Definite dan-organi-
zation does not exist, but the germs of it may perhapls
be found in the fact that certain groups related
apparently by blood and marriage occupy more or less
fixed localities.”

The tribal constitution is here in a distinctly rudi-
mentary stage. No other is possible in the crriiel
environment. Yet we are told that "the Yahgan is
as gregarious as his food-supply and wanderlusi^ thp
latter if not engendered at least nursed by his habitat^,
will permit,” and that ” only lack of greater communall
intercourse is responsible for lack of leaders.” ‘

In the stormy Bay of Bengal the inhabitants of the,
Andaman Islands, a negrito people, are very low in thfc
scale of humanity. They are acquainted with the use
of fire, but do not know how to produce it. They are
divided into a number of independent tribes, amon^j

which the entire country is apportioned. The climate
is tropical, the islands are covered more or less with
jungle, and life is less arduous than that of the Yahgans ;
larger communities are therefore possible. Roots,
fruits and seeds of various kinds, honey, shellfish, fish,
and turtle on the sea-shore, inland the produce of the
chase, such as mammals, iguanas, snakes, and certain
insects, constitute the main food-supply, occasionally
jraried with pigeons or jungle-fowls. To obtain these
they have to live a nomadic life, each tribe and each
jiocal group within its own limits. They dwell in huts,
more or less fragile according as they are intended for
ai comparatively permanent camp or to serve only
tlemporary ends. There is no organized government,
lor any chiefs properly so called. The persons who have
een called chiefs in the writings of Mr. Man, and even
Sir R. C. Temple, appear to be in fact no more than
^en whose personal qualities of skill in hunting and
J^hing, their boldness and enterprise in war, and their
ibputation for generosity, hospitality, and evenness of
temper have led them to eminence among the older
men. It is the older men and women who manage
||ic affairs of the community and get the best share of
pie good things of Andamanese life. Each tribe
^sists of a number of independent local groups or
immunities, united only by a common language and
(ich common feeling as it generates with neighbours
ifio «are known, and who are known to be on the whole
lendly and to have certain common interests. In
iemselves the local groups are but loosely bound to-
other : a member who is discontented can always
ut his group and join another which may be willing
» receive him. In the management of affairs the elders

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PRIMITIVE LAW

are therefore subject to the will of the group ; and, if
in the distribution of food and other matters they get
any personal advantage, it is because this is conceded
to their known qualities and experience and to the
tradition of the community. Moreover, younger men
attach themselves willingly to elders of known ability,
and increase their following and their local group.
There is no distinction of rank or class: apart froni
age and personal character all are on equal terms.
But there is a further division of the people into long-
shore men and jungle-dwellers, according to their
respective habitat and habits, each of these divisions
in each tribe having its own elders and leaders.^

The constitution of the Andamanese tribe, accordingly ,
is still founded on voluntary association and obedience.
If it be any higher than that of the Yahgans, it owes,
it to the larger and more permanent aggregations oi
individuals composing it, and consequently a greateir
and more continuous common feeling and co-operation .
The people are not separated by the need of seeking,
food on barren islets and on the seas, where numbers
would be of little avail and could not be supplied withj
the requisites of life. They dwell in the jungle, or on|
shores that furnish them with more liberal supplies].
On the other hand, co-operation is needed for the erec-
tion of their comparatively permanent encampments,
for the hunt, and for protection against neighbouring
tribes, some of which are warlike and addicted tt
raids across the frontiers of their respective territories.
Assistance is willingly given, for the sustenance anci

often the very existence of the local community and the
tribe are at stake. It should also not be forgotten that
the association and obedience of the individual members
may be volimtary only in appearance and in detail.
The habit is impressed on them from their earliest
years. It becomes part of their character. They
cannot imagine any other mode of existence ; and to
act contrary to the customs of the tribe or the wishes
of the elders would be to challenge public opinion and
to render them outcasts, unless in a particular case they
had strong grounds for their action and the sympathy
of a considerable proportion of their fellows.

In a similar zone of civilization the Australian tribe
differs in organization from that of the negritoes of the
Andaman Islands in several respects. As in the case
of the latter, each tribe occupies and hunts over a certain
territory whose limits, however ill-defined they may
seem to us, are well understood by the natives. The
tribe within those limits speaks a common language and
recognizes a certain kind of kinship uniting all its
members ; but it has no chief, nor any large permanent
community. The quest of food divides it into small
parties, sometimes consisting of no more than a Yahgan
boatload — an adult man with his wives and children — at
other times of a greater number, but usually all related
by blood or marriage, roving about within a certain area
cfver which they have a special claim, and camping
together in miserable temporary huts, or often under
tip shelter of mere wind-screens. These small parties
aire, however, more or less in touch with neighbouring
p,wties, and with them form what may be termed a
lofal group, which meets now and then for ceremonial
fijpetions, consultations, hunting, and social amuse-

16

PRIMITIVE LAW

mcnt. More rarely the entire tribe assembles for these
purposes, and less frequently still two or more tribes
speaking dialects of a common language.^ Such
meetings, if food can be ensured, may be prolonged over
days and even weeks ; but the conditions forbid any-
thing more than an occasional reunion. The strongest
tie between the units of a tribe is perhaps that of
language, which gives substance to the vague feeling
of kinship between the different local groups. Each
local group, whether large or small, is very jealous of
any violation of what is deemed its special territory, and
such violation may, and frequently does, lead to war.^
Although the tribe has no single chief whose power is
recognized by all the units, there is as a rule one man in
each local group who takes an undefined leadership and
from his ability and experience is recognized in that
capacity. On his death he is often succeeded by his
son, if qualified in the same way. Such a man wields
in his local group much influence. His authority is
rarely set at defiance ; but it is indefinite, and is armed
with no compelling power. Beyond the limits of the
local group he comes into competition with other local
leaders. Both in the local group and in the tribe tlie
real power is vested in the old men, who form a sort of
council whose decisions arc generally accepted ; and
of this coimcil the local leaders (often called the head-
men) naturally form part. The constitution of the
council, however, is vague, and its decisions, wheii

Another division cuts across those of the local group
and the tribe, namely, the clan. Save among certain
tribes every native belongs to a clan, theoretically a
body of blood-relatives into which he is born. This
body transcends the local group and the tribe. Indeed,
so wide are its ramifications that it is probably not too
much to say that many of the clans, or clans which are
held to be their equivalents, are found from one end of
the continent to the other. We shall consider the clan
more in detail hereafter. Meanwhile it is sufficient to
observe that the claim to blood-kinship is not the
vague kinship of the tribe, but a definite relation
founded on descent on one side, and on one side only,
either through the mother, as seems to have been the
original reckoning, or through the father, which is now
the reckoning of some of the tribes. Among the Central
tribes the clans are in process of disappearing. The
Arunta have already practically discarded them in
favour of local groups, centred round the shrines of
perpetually reincarnated ancestors. At the head of
each of such local groups is a leader who is believed to
be a reincarnation of one of the ancestors, and the
group over which he in some sense rules bears the name
of the clan the shrine of whose previous incarnations
it is believed to be in possession of. The local group
continues the reincarnation of the dead, and is recruited
aot by descent but by children who are believed to
be reincarnations because their mothers are held to
lave conceived not by sexual coition, but by the

^ Wheeler, 49 sqq.

18

PRIMITIVE LAW

entry in some mysterious way into their wombs of the
spirits of the deceased.^

The clan is exogamous, that is to say, no member is
allowed to marry another of the same clan, for this is
held to be incest.^ A further development in organiza-
tion has, however, taken place almost all over Aus-
tralia, by which the tribe is divided into marriage-
classes. These marriage-classes seem to have been
developed out of the clan-system. In the tribes of
simplest organization they coincide with the clans.
In this case there are only two marriage-classes, which
results in dividing the clans into two phratries ; and
marriages are only permitted between members of
opposite phratries.® This, however, does not of itself
prevent marriages of very near kin. If the rule of des-
cent were matrilineal, for instance, it would not prevent •
the marriage of father and daughter, for they would
belong to opposite phratries ; if patrilineal, it would
not prevent the marriage of a son with his mother.
The next step therefore is to divide the marriage-class
into two. Every member of a marriage-class belongs
to one or other of these divisions or secondary classes,
and the children of a marriage belong to the class of
the parent of the sex through whom descent is reckoned,
but to the secondary or sub-class to which the parent
does not belong. Most of the tribes having the original
marriage-classes only, or the original marriage-classes
and the secondary classes, reckon descent through the
mother only. Some of the. Central tribes have still

^ Spencer and Gillen, " Central Tribes,** Chap. IV.

Howitt, 176, 189, 203, etc ; Spencer and Gillen, ** Central

Tribes,** 60 ; Frazer, “ Totemism,** I, 53.

® Howitt, 175 ; Spencer and Gillenj ** Central Tribes,*' 60.

CONSTITUTIONAL LAW

19

further developed the system by sub-dividing the
secondary classes, each into two tertiary classes. All
these tribes reckon descent through the father. His
children belong to his primary and secondary classes,
but not to his tertiary cla3s. They are assigned to a
tertiary class to which he does not belong, and his
grandchildren to another tertiary class, with neither
of which can he intermarry. The whole tribe is thus
divided into eight sub-classes, into only one of which is
any member allowed to marry. This artificial arrange-
ment seems to have been devised to prevent the marriage
of near kin among a scanty population in which the
choice of a spouse was already not too wide, and in
which the negotiation of a marriage was a matter of
high import to the community.^ This at least is its
effect ; but it also prevents the intermarriage of many
persons who, as we reckon kin, are in no way related
to each other. In a low stage of culture, however,
kinship is reckoned on what is called the classificatory
system, which appears to have in view the relation not
of individuals to one another, but of classes. Thus
the father and all his brothers, as well as certain of those
whom we call cousins and others of the same generation
outside the lines of what we esteem as kindred, are
reckoned as fathers, the mother and all her sisters,
together with certain cousins, as we reckon them, and
other women of the same generation, as mothers, and
so on. It is not that the “ primitive does not know
who is his real mother, or does not recognize his mother's
husband as his real father, but the actual mother or
father is one of a class all of whom sustain for purposes

of social order a certain relationship to him. As the
sense of dependence and affection develop among
persons brought into close and continuous contact, the
feeling of kindred becomes more and more individual
and acute, and the marriage regulations, unless suffi-
ciently S3^tcmatized by such a device as the Australian
marriage-classes, overflow in supplementary prohibi-
tions, similar in principle to those in use in civilized
countries ; the clan tends to die away and be super-
seded as an active institution by the family.

The constitution of the Australian tribe thus exhibits
a higher capacity for organization than is exhibited
either in the Yahgan or in the Andamanese tribe. It
is true that the permanent aggregation of any large
number of individuals into a community is rendered
impossible by their surroundings and their low civiliza-
tion ; there are no tribal chiefs and no ranks of society ;
all men are equal, save so far as their personal character
may raise them in the estimation of their local group
to some kind of leadership. The clans, however, bind
together the units of society into an association by
what are believed to be ties of blood ; and on these are
superimposed the marriage-classes as a further step in
organization, very useful in default of any distinction
such as is in a higher society foundin the different ranks
and occupations.

The isolation of the Australian Blackfellows for
immemorial ages, like that of the peoples previously
considered, has doubtless resulted in the perpetuation
of their rudimentary civilizartion and the continuance
of the democratic constitution of the tribe. Had they
been subjected to invasion by other peoples they must
have been dispossessed of the continent, or a great part

CONSTITUTIONAL LAW

21

of it, and ultimately annihilated, or they must have been
conquered by and intermingled with them, so as to
form a people with institutions of a much more elaborate
character. The same cause has preserved, on a much
higher level of civilization, a condition of society in
many respects comparable with that of the Andamanese
and the Australian natives. The Philippine Islands
have a population of Malay origin, composed of a number
of tribes in various stages of culture. Those inhabiting
the lowlands have suffered the domination of Moham-
medan conquerors, and after them of the Spaniards, who
have brought in various religious and social customs,
as well as more material elements of culture. But
the mountaineers, by virtue of their greater inaccessi-
bility, have retained their independence, £ind with
it more primitive institutions. Since the Americans
have been masters of the islands they have penetrated
where the Spaniards never succeeded in going; and
several of the interior tribes have been carefully and
scientifically studied. Of these the Ifugao, inhabiting
a mountain region in the centre of the northern part of
the Island of Luzon, present with many advanced
features a very archaic social and political type. They
are agriculturists, whose staple industry — ^putting
aside the gentle art of head-hunting, now suffering
eclipse by reason of American persistence in rendering
the practice imcomfortablc — is the growth of rice,
supplemented by that of sweet potatoes and some other
vegetables of less importance. Upon rice they chiefly
depend for their subsistence. For its cultivation they
have carved their steep momitain-sides into terraces
with wooden spades and woode^ crowbars. Many of
these terraces are walled with stone, and some of them

22

PRIMITIVE LAW

are as much as fifty feet high. All of them are irrigated
with the water from their mountain-streams. “ With-
out his knowing it,” we are told, the Ifugao " bases his
agriculture on scientific principles (to an extent that
astounds the white man) ; and he tends his crops so
skilfully and artistically that he probably has no peer
as a mountain husbandman." ^

Yet the same authority goes on to declare that “ of
political organization the Ifugao has nothing — not
even a suggestion. Notwithstanding, he has a well-
developed system of laws." There is no central
authority, but the law rests on the unit of the family.
"The mutual duty of kinsfolk and relatives, each
individual to every other of the family, regardless of
sex, is to aid, advise, assist, and support in all contro-
versies and altercations with members of other groups
or families." " The family is a little democracy in which
each individual is measured for what he is worth, and
has a value accordingly in the family policy." It is
"an executive and judicial body. Its councils are
informal, but its decisions are none the less effective."
Consequently, the first principle of Ifugao jurisprudence
is that the family solidarity is to be preserved. It is the
family that punishes offences against itself or against
individual members ; for every offence against an
individual member is an offence against the whole
family. The Ifugaos are divided geographically into
districts and villages. But disputes do not take place
between these : only between families ; and peace is
made between families. " But peace between the
principal families of two villages or districts was some-

1 R. F. Barton, “ Univ. Cal. Pub.” XV, 9 .

CONSTITUTIONAL LAW

28

times in effect a peace between the districts or villages
involved/' though it may have been uncertain and not
to be depended on. War between families and the
punishment of offences were conducted by a well-
understood procedure, which we shall consider here-
after.^

In fact, the family is the only organization known to
Ifugao law. As such, it plays a large part in Ifugao
life : it is responsible for the acts and defaults of all
its members ; it is capable of holding property in the
shape of lands, water rights, and valuable portable
articles deemed to be heirlooms, which can only be
alienated in cases of extreme necessity and with the
consent of the kin, registered by solemn ceremonies.
In the face of all this it is odd that the term " family "
is never defined by the only investigator whose account
has been published. As far as we can gather, it consists
of all the relatives, paternal and maternal, by blood
or marriage, within vague limits, of any given person.
It is not the same for any two persons unless they are
brothers or sisters of the whole blood and unmarried.
By marriage a man or woman acquires new relations —
the relations of the spouse ; and they continue to form
part of his or her family, though with a lighter tie than
blood-relations, so long as the marriage subsists. This
shifting nature of the family introduces an enormous
complexity into Ifugao society. Since the rights and
liabilities involved are so extensive, a marriage is usually
arranged for children at an early age. When entered
into by adults it is commonly preceded by an informal

trial " marriage. A permanent marriage is entered

Barton, 15, 92, 109.

24

PRIMITIVE LAW

into with the consent of the families on both sides,
testified by repeated festivities, and including an assign-
ment, somewhat resembling in effect what is called in
English law a settlement, to the children of the property
they are intended to inherit.^

A similar society, but even more peaceable, is that of
the Eskimo. The peace of Ifugao society is, or used to
be, broken from time to time by head-hunting, which
naturally occasioned family feuds. The Eskimo on
the Arctic shores of North America and north-eastern
Asia had not this source of quarrel to add to such
disputes as inevitably arise in a human community.
Distributed along the coasts for thousands of miles
from east to west, their customs vary in detail, and arc
partly dependent upon their immediate surroundings.
They are, however, in general agreement. In winter
the Eskimo are congregated together in snow huts,
or huts built of rough stones and drift-wood, and they
are supported by the labour and daring of the men in
fishing for seals in skin-covered kayaks on the tem-
pestuous seas. The unit of society is a family consisting
normally of husband, who is the protector, provider,
and ruler, his wife or wives, and children. More than
one family sometimes lives in a hut, and the huts are
collected in little settlements, each comprising several
huts. There is no chief, nor any clan. The sole
divisions are the family as above defined, and beyond
this the housemates, and in a settlement containing
more than one hut the placemates. A vague feeling
of comradeship is engendered by dependence on th(^
labours and adventures of the men ; and their produce

1 Barton, 17, 18, 19, 290., 39, 40, 92.

CONSTITUTIONAL LAW

25

is divided first among the family primarily dependent
on them. If it be larger than suffices for the family
it is shared with the housemates and the placemates.
Every community is governed by its public opinion.
No one ventures, as a rule, to run counter to the public
sentiment or the customs of the tribe, which are well
known. What happens when anyone does so we shall
consider in another chapter.

When the long and bitter winter passes away the
community scatters, and its organization, such as it is,
disappears until the winter and darkness return. The
families on the mainland go to dwell for a while in tents.
The men hunt the seal and walrus, they fish for salmon
in the now icc-frec streams, they hunt the various land
animals of which they can make use as food ; the
women gather such berries and other vegetables and
small animals as the climate affords. Sometimes
small parties set out in kayaks, visiting others, or hunt-
ing on land or sea in a comparatively distant area,
retiurning with winter to their own settlement when it
reassembles, or settling down elsewhere. There is
nojthing to compel them to come back, except their own
chpice, motived by usage and affection for their own
wiiT^^es, parents, or children, or friendship with their old
plabemates. The whole settlement often removes to
another location for good reason approved by the
coifnmunity Or it may divide if it be difficult to live
peaceably together, or if a sufficient body of members
pr^er another sitc.^

organization as the Ifugao, nor limited as the latter are
by the immediate contiguity of other tribes, and
although more adventurous and more given to wander
than they, the Eskimo are not without bonds. They
may be Wn in a community or settlement, and they
may be retained in it by sentiment or by ties of relation-
ship, or they may join by their own free will ; but
they know that once in a community they must act in
accordance with the common opinion, and their manner
of life must be regulated by the immemorial customs
from which they cannot escape, even by joining another.
Every member of a community has a voice in its
decisions ; and hardly even the shaman has a privileged
position. But much deference is shown to elders.

We have now considered some typical societies of
rudimentary organization. Except the Ifugaos, they
are all in a very low state of civilization, dependent
on a supply of their daily food from hand to mouth.
The Eskimo may indeed be reckoned considerably above
the lowest step if we consider the admirable adaptation
of their instruments, the ingenuity of their appliances,
and the skill and beauty of their ivory carvings. But
the great test is their power of accumulating £(.nd
laying up stores of food and other provisions, so that
they may be able to rest on an artificial and well-
thought-out basis of subsistence ; and this test they
fail to pass. Among all these peoples the seal, of
authority is found to rest in the people themselves,
controlled by little definite qpganization. The begin-
nings of such an organization are, however, founds in
the family, an institution based upon the union of the
sexes and the blood-kinship which thence ensues. 1 In
this form it is probably the earliest of human institu.

CONSTITUTIONAL LAW 27

tions. But until it is provided with a distinct shape
by the formation of clans, it seems incapable of further
advance. In Australia alone of the cases we have
examined has this advance been made. We shall
now turn to a few typical examples of the constitution
of society in the higher savagery and barbarism. The
developments are numerous and varied ; and we shall
not have space (nor is it necessary) to consider them
at the same comparative length as the more elementary
forms with which we have hitherto been dealing.

We will begin with the Yakuts, a people of the north-
east of Siberia, one of the coldest regions of the habitable
globe. Like most of those previously considered they
are a nomadic people, but unlike them they have
advanced to the accumulation of wealth in the shape
formerly of droves of horses and now of cattle, from
which their food and clothing are obtained. Their
food-supply is therefore no longer the hand-to-mouth
supply on the natural basis of hunting and fishing.
Their organization rests on the sib, or kindred, now
descendible in the male line, though formerly in the
female line. The sib or clar is called Aga-sesa, It
consists of an indefinite number of individuals all con-
ceived as related by blood. The clans are grouped
into a nasleg, and these again into an ulus, terms which
may be translated respectively as sub-tribe and tribe.
The clan is divided into families, dependent on the size
of the droves belonging to them. The smallest drove,
on which a family of four persons could barely subsist,
was ten head, namely, five mares, one stallion, one two-
year-old, one one-year-old, and two suckling foals. On
the other hand, a maximum of from three hundred to
five hundred head would maintain a community of

28

PRIMITIVE LAW

thirty in comparative ease. These economic conditions
on the Siberian steppes have severely limited not
merely the growth of population but the progress of
civilization. Whether large or small, the clan used to
be the community owning a drove ; and between the
members of the clan there was community of goods.
They dwelt in settlements or villages, each village being
surrounded by enough land for the pasturage of the
drove. The land of the tribe for this purpose is divided
among the sub-tribes, and the land of the sub-tribe
among the clans of the nasleg. It was re-allotted from
time to time with the view of meeting the fluctuating
requirements of the various divisions of the people,
for which special officials were appointed. There is a
strong feeling of solidarity within the sih, which formerly
blazed up in blood-feuds, and still shows itself on the
one hand in shielding wrong-doing by comrades, and on
the other hand by justice and right-doing within the
sih. Before the Russian occupation the whole clan was
held responsible for a murder by one member, and was
required to make compensation either in blood or
damages. Every sih has a council of elders that settles
all questions ; and whatever may be the character of
its decisions within the clan, as between its own members
and those of another clan it still takes the part of the
former. The powers of the head of the clan were
limited to the administration of justice and leadership
in war. A war or blood-feud, when it took place,
usually resulted, according to the national legends, from
the stealing of women or of *thc animal wealth of the
dan. Reconciliations were celebrated by meetings
with ceremonies and feasting. The clans were inde-
pendent of one another. They used sometimes to rjnake

CONSTITUTIONAL LAW

29

alliances for defence or economic purposes. In summer,
council meetings of the whole tribe are held in the open
air, which are attended by every one ; but the decisions
are arrived at by the elders, and accepted and confirmed
by the assembly. By the Russian occupation and the
introduction of cattle, which require much less labour
and attendance than horses, the structure of Yakut
society has been loosened and to a great extent revolu-
tionized. The kefgen, or family, takes the place of
importance formerly held by the clan or sib. The
solidarity of the sib has passed or is passing rapidly
away. In the kergen the young are subjected to the
elder, and all to the head, usually the father or (failing
him) a brother, in whom all the property of the family
is vested and who can dispose of it as he pleases. His
power over the other members is uncontrolled. Thus
the life of the Yakuts is passed in the care of their
droves of horses or herds of cattle that find pasturage
on the steppe ; and in the occasional pursuit of game or
fishing. The organization and the conditions of life
imply a generally peaceful environment, and hence a
greater concentration of authority has been unnecessary
and has not been developed.^

From the Yakuts we turn to the Melanesians, a people
who also, in a very different climate and environment,
have made considerable advances in civilization. Their
wealth consists not in droves of horses or herds of cattle,
but in their fields of yams and taro, their plantations
of bread-fruit trees, and their pigs. They are even
acquainted with the use of money, and have three
species of currency— not, of course, of metal, but of

^ " J. A. I.,” XXXI, 65 sqq , ; Czaplicka, 55-62.

80 PRIMITIVE LAW

3^7935

shells, of feathers, and of mats. The Melanesians are
a mixed race, perhaps developed from negritoes and
Papuans with larger or smaller infusions of immigrant
(probably Malay) blood. They inhabit the islands
eastward and south-eastward of New Guinea as far as,
and including, the Fijian archipelago; and they have
in comparatively recent times colonized the south-
eastern shores of New Guinea itself. Taking the
Banks' Islands as typical, the fundamental matter
about Melanesian society is that it is divided into two
kins, called veve, which are strictly exogamous. The
division is not political ; for members of both kins are
found in every village, in every house. The veve, or
kin, reckons descent through the mother only ; and
inside the kin there arc families, some of which have
a certain family pride, and endeavour to keep up by
intermarriage the family connexion." In this there is
a germ, but only a germ of rank. There is no tribal
organization. Each veve is subdivided into groups
unconnected with the regulation of marriage. The
islands are also divided into districts, often inhabited
by people speaking obviously different dialects, having
local autonomy. The relation of the groups into which
the veve is divided with the districts has not been
determined. Practically all the men are associated
into connected societies or clubs, called respectively the
Sukive and the Tamate, Entrance into these clubs is
obtained by introduction through an existing memoer
(usually the candidate's mother’s brother) and the
payment of sums of native money. Each is organized
into various ranks, promotion in which is also obtained
by payment. The higher ranks form a gerontoerdey,
only attainable by wealth and influence. This gei^on-

CONSTITUTIONAL LAW 31

tocracy rules the people through the medium of the
clubs. It is not, strictly speaking, hereditary. A
father, however, would see to his son taking such
degrees in the societies as would ensure his continuing
his own dignity and authority. The beginnings of
gerontocracy are observable among other savage
people, especially among those who perform rites of
initiation upon youths at puberty, and notably among
the Australian natives. The Melanesians have
elaborated these rites into more or less secret societies
with a hierarchy of ranks applied to the purpose of
government. Such an organization would not be
possible without a settled community and an accumu-
lation of wealth. Here also the general condition is
one of peace, varied, however, by warlike expeditions,
particularly on some of the islands by the amusement
of head-hunting raids. ^ 2. H ^ 3 £ •

The Polynesians (a race mainly of Malay origin,
occupying the islands of the Pacific Ocean from Hawaii
to i>few Zealand) are essentially warlike. Among the
Mafari the child, if a boy, was dedicated to the god
of vpr ; 2 and his primary instruction was in the art of
war.P The chiefs, it is said, used to spend the winter
in pitting, with all the piety, callousness, and treachery
of d Prussian king, the wars to be undertaken the
following summer. In fact, the normal condition was
onei of war. This brought with it a more complex
orgjJnization of society than any that we have con-
sideired hitherto. We find accordingly that the popu-

^ Jgton, 21, 24, 25, 33, 54-58 ; Rivers, “ Hist. Mel.

Soc.,r' passim.

Taylor, i86.

» IFolack, II, I,

82

PRIMITIVE LAW

lation was divided into three classes : the aristocracy
called rangatira, in which chiefs were included ; the
common people, tdngata-ware ; and the slaves, pononga
or taurekareka. Bravery and eloquence, or persuasive
power, were the two qualifications most insisted on ;
and these were capable, by the influence they gave him,
of raising a man from the common people to the rank of
chief, which, on the other hand, his descendants would
lose if they were wanting in such qualities.^ According
to legend the ancestors of the Maori came to the
islands in three canoes. The reputed descendants of
these ancestors were known by the names of the three
canoes respectively. They constituted the three
primary lateral divisions of the people. They were
again divided into iwi, or tribes, according to their
subsequent legendary ancestors, and these into sub-
tribes, called hapu,^ The chief was the head of a tribe
or sub-tribe. He had no influence beyond, unless in
war-time he were elected to lead a combination. All
war-chiefs were chosen from recognized chiefs. Apart
from election for this special purpose the dignity of
chief was strictly hereditary in the eldest child^, or
failing him the next, and so on. The heir was called
ariki, whether son or daughter, though a female ariki,
albeit she was very influential, could not lead in war
and lacked some of the privileges of the male ariki.
The Maori were devoted ancestor-worshippers ; hence
the ariki was not merely a chief with secular functions :
he was priest of his sacred ancestors as well. This giave
him command of the most potent spells and the right
of precedence everywhere. He was indeed, like ; the

^ Shortland, 226 ; Taylor, 194, 355.

2/Wrf., 223 ; E. Tregear, J. A. I/' XIX, 97 -

CONSTITUTIONAL LAW 88

ancestors whose priest he was, sacred. Nay, every
successive link in the genealogical chain was more
sacred than those before it : every successive genera-
tion had two more illustrious ancestors than the pre-
ceding generation.^ The chief, like every head of a
household, was supreme over his own household.
Outside it he had no power to compel ; and few matters
of importance, domestic or foreign, could be under-
taken except after public discussion and decision. At
the assembly held for this purpose not only chiefs
but also the warriors, women, and even children, were
permitted to speak; thus political wisdom and elo-
quence were early acquired. The final decision, how-
ever, rested with the chiefs. A chief might put to
death any of his slaves ; but he stayed his hand before
.one of his wives or children, for the death of a wife
might result in a claim by her kin for compensation, or
in vengeance, and for the death of a child he would be
liable to be called to account by his hapu or iwi,^ His
prestige depended partly on his personal qualities and
conduejt, and partly on those of his divine ancestors,
with w^hom he was believed to be in constant com-
munication. He was surrounded by a tapu which
rendened his person inviolable, or even unapproachable,
uiilessj by a mightier and more illustrious personage.®
The central force of Polynesian society was tapu (whence
our Emglish word taboo). Its power was so great that
anything that belonged to, or even was touched by, a
chief c(|^d only be touched^afterwards by one less great
than h^ at the risk of death by supernatural means.

iTregear, iUd. 112; Shortland, 226.

I Polack I, 36, 54 ; II, 6i ; Shortland, 227.

^ Pnlack, I, 27

34

PRIMITIVE LAW

His very name was sacred and not lightly to be pro-
nounced. A chief could tapu any property to himself
by a word. The power he thus wielded over the
superstitions of the people was immense.^ Public
quarrels between chiefs were referred to and decided
by the rangdtira nui, or head of the tribe.* Of necessity
in a condition so unstable and so liable to surprise
attacks the population was gathered in pas, or stockaded
forts, the sites of which were chosen with great judgment,
and the defences of which were elaborated with care.
Indeed, military genius was developed that soon learned
to accommodate itself with not a little success to
the new firearms introduced by the pakeha, or white
man.*

Material reward of success in war does not aeem
to have been sought, except in one direction the^
slaughtered foes were brought home to be the subjects
of a cannibal feast. Thus was not only the last indignity
inflicted, but by eating the body of a conquered enemy
all his powers and all his qualities were appropriated by
the victor. Beyond this, however, in a land where
there were few animals of any size fit for eating, and
where the natural basis of sustenance was still that of
the inhabitants, human flesh was a welcome if not
a necessary resource.^ Maori cannibalism wajs not
entirely due to ferocity, but also, and perhaps yet more,
to the physical craving for diet more stimulating than
fish, fern-root, or taro. Beyond the Pacific Odean a
similar craving seems to have led to cannibalism in

Mexico. The Aztecs are believed to have come from the
far north-west. In so doing they must have traversed
the Rocky Mountains and the great plains, both of them
abounding in the big game of the North American
Continent. Probably their sojourn there was no short
one. So much the greater therefore was the change
when tliey descended into what are now the southern
provinces of the Mexican Republic, where the principal
food was derived from the cultivation of maize, and
their life was perforce changed from that of nomadic
hunters to that of settled cultivators of the soil. They
possessed no beasts of burden or draught, and no large
domestic animals of any kind. For a stimulating diet
they had recourse to human flesh. To provide it they
waged continual warfare on the tribes they now found
around them. In that warfare it was their great aim
to take prisoners for sacrifice to their terrible gods, and
after sacrifice to be eaten. ^

Before dealing with the Aztecs, however, it is neces-
sary to make clear the distinction between tribal
organization and that of a State.

Tribal organization is founded upon the kin. No
one can be recognized as a member of a tribal society
who does not belong to one or other of the kindreds
within it. A newborn child has no rights, and may be
put to death or exposed and abandoned to the wild
beasts and the mercies of external nature, until it has
been received and accepted by the head of the kin.
When this has been done it has more or less acquired
the rights of a kinsman — ^fights which await confirma-
tion when at or after the age of puberty the ceremonies
are performed which are necessary to full recognition.

' Payne, II, 379, 380, 499-501.

86

PRIMITIVE LAW

Admission of an alien into the Iroquois tribe was by
adoption by one or other of the kins in the tribe. It
was frequently performed on prisoners taken in war and
was the only alternative to torture and death. A regular
ceremony was performed, in which usually a mother
who has lost a son formally adopted a captive in his
stead. He was by this rite admitted into the tribe,
to which he henceforth belonged, and lost his status
in the tribe of his birth. ^ A similar procedure was
common in other North American tribes. The Osage
rule, however, was that when a captive was to be
received into the tribe the rite resembled a blood-
covenant and several clans took part in it ; but the
hew member was adopted into the family of his
captor.*

The blood-covenant is a very common ceremony in
other parts of the world. It consists in the transfusion
of blood between two or more individuals, either directly,
or by drinking, or in some symbolic manner. By this
means the persons who go through the rite and those
whom they represent become of one blood, and are
entitled to all the privileges and liable to all the duties
of blood-kinship, exactly as if they had been born to
them.

The transition from tribal organization to political
organization takes place when one military tribe over-
comes another and settles upon its territory. It is the
incorporation of the conquered tribe in the new organi-
zation, the object of which is the maintenance of the
military hold upon the land. The emphasis is trans-
ferred from the kindred to the country ; the conquered

Morgan, ** League," I, 331-334-

F. La Flcsche, " Holmes Axiniv. Vol.,’’ 287.

CONSTITUTIONAL LAW 87

tribe ultimately coalesces with the conquerors and
accepts the new outlook, the conquerors, on the other
hand, taking the conquered as fellow-countrymen,
and both finding in this new relation a common interest
against all other peoples. The process usually occupies
generations. When it is accomplished the “ primitive **
organization no longer exists : the tribe has been
transformed into a kingdom, the tribesman has become
a citizen, his admission is not by adoption or blood-
covenant, but by an oath of allegiance and a formal
recognition of his fellow-citizenship, he pays the dues
and performs the obligations demanded by the sove-
reign power from the class of citizens he has entered,
and is entitled to the same privileges and protection
from the sovereign power as other members of the
class.

When the Spaniards came they found the Aztecs
in an advanced state of civilization. The soil was
systematically cultivated, substantial houses of stone
were built, gold was worked, the measurement of time
for civil and religious purposes had reached the reckon-
ing of 365 days to the year, chronological records were
kept, picture-writing was developed, and arithmetical
calculations were in use for various purposes, not the
least important of which for the State was the assessing
and recording of the tribute paid by the subject peoples.
The Aztecs had descended upon Mexico, like the bar-
barians upon Rome, with a tribal organization. Their
settlement there, their contact with more highly civilized
nations as well as with the ruder aborigines, had changed
the character of their organization. Surrounded on
all sides by foes and peoples conquered but by no means
assimilated, the leadership of the tribal chiefs was

88

PRIMITIVE LAW

transformed into a great military despotism, though
the transformation had not yet been fully completed.^
The military aristocracy was organized under the
monarch on feudal lines, the chiefs to whom lands were
assigned on military tenure being compelled to reside
at Mexico with their families, though always ready to
take up arms. Out of the warrior class a military
council for the sovereign was formed, and a judicial
body. Tliere was a court of first instance, with a right
of appeal to higher judges, and thence to the sovereign
himself. The whole power seems to have been in the
hands of the warrior class, the heads of which formed
the nobility. Below the warriors were the peasants,
whose lives were a round of toil and taxation. Their
burdens were all the greater for want of domestic
animals. The cultivation of the land was perhaps the
least. All the building materials were transported by
the peasants, whose labour was also employed in build-
ing and repairing. They conveyed the produce of the
lands they cultivated to the proper storehouses for the
use of the warriors and religious officials, who had the
first claim upon it ; they also trmsported the tributes
of the subject peoples ; they attended the warriors on
active service as bearers of their arms and food. Hardly
less laborious than the peasants' was the life of the
warrior class. Once in every period of two hundred
days, as well as at other times when the sovereign
willed, they were summoned to take the field and attack
a hostile district, not because there was any just quarrel
or any reason to forestall the enemy, but as a mere
military exercise, and because the gods required human
sacrifices and the cannibal warriors food. Both the

Payne, II, 494.

CONSTITUTIONAL LAW 89

warriors and the peasants were prescribed a rigorous
course of education for the parts they had to sustain ;
and their courses are pictured for us in the Mendoza
Codex, prepared shortly after the conquest and now in
the Bodleian Library at Oxford. The son was usually
brought up in his father's occupation, from which he
had no liberty to diverge. The gods, the sovereign,
and the chiefs of the aristocracy were housed in splendid
and substantial buildings. The people were gathered
in pueblos, or villages, of which the most important
was Mexico, where the sovereign resided. Everything
was subordinated to the maintenance of military
dominance, the keystone of which was the worship
of their pitiless deities. It was a more than Prussian
tyranny, though the unfortunate natives may well have
doubted whether the God of the Holy Inquisition, who,
by the Spanish conquest, supplanted Huitzilopochtli
and Tezcatlipoca, was one whit less cruel or less addicted
to feeding on human flesh than they ! ^

In the west of Africa dwelt a people who had gone
through a constitutional evolution very similar to that
of the Aztecs, but who had not attained to quite so
great a civilization, and whose continual wars resulted
in prisoners and human sacrifices as bloody as theirs,
though not in cannibalism — the people of Dahomey,
West African negroes speaking an Ewhe speech, dialects
of which are spoken all over the Slave Coast and its
immediate interior. The constitution of an Ewhe tribe
in general is that of an aristocracy of local chiefs,
subject to the king as head of the tribe. The common
people have no voice in the government. Dahomey
was a military monarchy. The king had made himself
^ Ihid„ II, 477 sqq„ 486 sqq.

40

PRIMITIVE LAW

absolute ; and all property belonged to him, even
the land which among other Ewhe belongs to the tribe.
He coniiscated to himself whenever he pleased the
property of any individual. His person was sacred :
chiefs even of the highest rank were compelled to
prostrate themselves before him, face downward on
the earth, and throw dust over their heads. He had
a number of officials, of whom the principal were the
Megan or Muigan, his chief adviser and grand execu-
tioner, and the Mehu, his master of the ceremonies, who
collected his revenue. On the king's death temporary
anarchy ensued, during which all sorts of licence pre-
vailed and no one could be punished even for crimes.
It was ended as speedily as possible by the Megan and
Mehu, whose duty it was to select one of the king's sons
to succeed him. The eldest son had a prima facie
claim ; but he could be set aside and another appointed.
The king's harem was usually large and his children
were therefore numerous. To maintain discipline in
the palace there were a number of female officials
corresponding to the masculine officials of the court.
All officials, both those of the court and the provincial
authorities or chiefs, were appointed and removed by
the king at pleasure. When appointed, the king gave
an official the insignia of his office, which were required
to be returned when he died or ceased to hold office.
The local officials held courts for the trial of charges or
the decision of disputes, but the more important of these
were reserved for the higher authorities, or in the last
resort for the king. During the Annual Customs (the
hecatombs of human sacrifice that the king offered to
his divine ancestors), affairs of State and high politics
were discussed by him with his counsellors. At that

CONSTITUTIONAL LAW 41

time the meanest slave had access to him for the purpose
of making complaints, and it was frequently then that
such matters were inquired into. Out of the king's
revenue all his personal expenses and those of the State
were defrayed. It was derived from taxation on local
productions and all imports, collected in kind ; from the
animal “ gifts ” made by the heads of families, traders,
headmen of villages, and provincial chiefs at the Annual
Customs ; from the sale of prisoners of war who were not
put to death ; from the property of persons sentenced to
death or slavery ; and lastly from the gifts of the pro-
vincial chiefs. These functionaries were not paid by
the king ; but it was their business to extort as much
as they safely could from the people under their juris-
diction, by means of real or imaginary charges, and
theiefrom to make their presents to the king. His
power was maintained by means of a large standing
army — ^the core of which was the three thousand
Amazons, as the king's female bodyguard was called
by Europeans — ^by the devotion of the officials through-
out the kingdom (whose interest was the same as
the king's), and by an extensive and elaborate spy-
system.

This iron constitution, like the autocracies recently
tyrannizing over the east and centre of Europe, exhibits
the resources of a comparatively advanced civilization
abused in the interests of the autocrat and a small band
of officials to the enslavement of the rest of the people.
In its external policy it was applied to raising and
maintaining an immense* military force, by means of
which every year the neighbouring tribes were raided,
terrorized, and conquered. It was the duty of the
Amazons to go out on military service as well as to guard

42

PRIMITIVE LAW

the king and police the capital. Apart from them
there was no warrior class. When the king declared
war the male population was called out by messengers
sent through all parts of the kingdom. Each chief
at the head of the men of his own district took the
field, and along with them went the women to transport
ammunition and supplies, and if necessary to take part
in the fighting. They met at the capital and then set
forth, marching by night so as to surprise the foe
from whom the king proposed to take plunder and
prisoners, for these were the chief objects of his ordinary
expeditions. The plunder helped to fill the royal
treasury ; the prisoners provided the annual sacrifices
to his ancestors, the wholesale horror of which long
resounded in the reports of travellers and made the
name of Dahomey a byword of senseless cruelty through-
out the world. It was no wonder that the French,
who held the protectorate of the adjoining coast
were compelled after long forbearance to intervene
in defence of territories they claimed and in vindi-
cation of common humanity, and to put an end once
for all to the kingdom and the rites of its bloodthirsty
gods.^

A parallel transformation from tribal organization
to that of the State was undergone during the Middle
Ages by the various peoples that in Europe invaded
and overcame the Rom^in Empire, or rose out of its
ashes. As a final illustration of primitive " constitu-
tional law we may take one of these. The Welsh
kingdoms were probably foimded by a series of incursions
from the north, which were led by a more or less mythical
chief, Cunedda, and his sons. The conquest seems to
> Ellis, “ E*e," Chaps. XI and XII.

CONSTITUTIONAL LAW

48

have been easy. The rival kingdoms which came into
existence maintained for centuries desultory and
fluctuating wars between themselves and against their
encroaching Anglo-Saxon neighbours, until one of them
succeeded in imposing some sort of an overlordship
upon the rest. When Howel Dda, King of Deheubarth,
reached this position early in the tenth century he
apparently aimed at fusing the various realms, not
merely by the rough-and-ready means of conquest or
intermarriage of the royal houses, but by the more solid
method of a common system of law. He was perhaps
inspired by the example of Alfred the Great, who had
previously codified the local Saxon laws. Be this as
it may, the laws which have come down to us under
the name of Howcl Dda, though in their present form
much later than the date of Howel himself, probably
owed their origin to his reign ; and they afford us
a picture of a society in process of change from tribal
to civil conditions. Looking at the system as a
whole," says Sir John Rh^s and Sir D. Brynmor Jones,
" it must be described as still tribal. Political and
property rights, as well as the status of individuals,
depended upon a theory of blood-relationship. The
whole community is looked upon as an aggregate of
tribes or clans and families, forming a ruling aristocracy,
under whom other classes of lower status are grouped.
The form of government, so far as the term ‘ govern-
ment ' can be used at all, was monarchical. In theory
the king of Gwynedd or Aberffraw was head of the
organization. He himself recognized the over-lordship
of the King of England. Regularly, all other chieftains,
princes or kings in Cymru were subject to the lord of
Aberffraw. The result is that there was a more or less

44

PRIMITIVE LAW

well-understood hierarchy of kings or princes, which
presents remarkable analogies to a feudal kingdom.'*^
The whole county was divided into cantrefs, and these
into cymwds. The cantref was ruled by a lord appointed
by the king. He had a set of officers corresponding
to those of the royal household. Sometimes several
cantrefs were combined under one lord, who called
himself prince or king ; but in any case, if we may
judge from the laws, each cymwd and cantref main-
tained its separate organization. The lord delegated
to certain officers the discharge of some of his functions.
In every cymwd there was a maer and a canghellor
discharging prescribed governmental duties, and in
each cymwd a court was held by them with the aid of
other officers.”*

Thus far the organization as a State. But there was
another and older organization, the tribal organization,
which pervaded it and was not entirely superseded for
ages, ” The cytnry of full blood deemed themselves
descended from a common ancestor ; but they were
divided into numerous kindreds, each of which formed a
kind of privileged oligarchy, but subordinate to the
kindreds of royal status. The kindred [cenedJ] was an
organized and self-governing unit, having at its head a
penkenedl [chief of the kindred]. The Welsh cenedl
comprised the descendants of a common ancestor to the
ninth degree of descent. The penkenedl, say the Laws,
must not be cither a maer or cangellor of the king, but
an uchelwr [nobleman] of the country ; and his status
must not be acquired by maternity. He has to pay a
tribute yearly to the arglwydd [lord] or higher chieftain.

^ Rhys and Jones, ** Welsh People,*' i88.

Ibid., 190.

CONSTITUTIONAI. LAW

46

He must be an efficient man, being the eldest of the
efficient men of the kindred and being the chief of a
household, or a man with a wife and children by legiti-
mate marriage. He was assisted by three other officers :
the representative, whose duty was to mediate in Court
and assembly, and in combat within the tribe, and to
act for the kindred in every foreign affair ; the avenger,
who led the kindred to battle, and pursued evil-doers,
brought them before the Court, and punished them
according to its sentence ; the avoucher, who seemingly
entered into bonds and made warranty on behalf of the
kindred.’*^ The kindred was thus “ an aggregate of
families residing in separate homesteads, at the head of
each of which was a pentenlu [chief of the household],"
who was assisted for various purposes by the officers
and a council of elders. All these families were held to
be descended from a common ancestor. There were,
however, different classes of persons, or castes ; and
status depended on birth.* The primary distinction
was between tribesmen or non-tribesmen, men of Cymric
or non-Cymric blood. Those of Cymric blood were
divided into a royal class, bc'longing to kindreds of kingly
. or princely status ; the nobility ; and innate tribesmen
called honeddigion, gentlemen. Below these were the
unfree, that is to say, the villeins and the slaves.*
The nobility and honeddigion were liable to military
service at any time within the country, and for six
weeks in the year outside it. As in the Mexican con-
stitution, there were provisions for the education of
youth. From the age of fourteen, until when the boy
was maintained by his father, he was commended to
the lord (originally, it is suggested, to the head of the
Ibid., 192 . ^ Ibid., 193 . » Ibid., 191 .

46

PRIMITIVE LAW

kindred) into whose protection he was received, whose
man he became, and to whom he became liable for
military service. The lord fulfilled his duty by handing
him over to a taeog, one of the unfree classes, on whom
he thus became quartered during this period, and with
whom he lived in fosterage. Ultimately he became a
fully qualified adult and received his share of the
ancestral land.^

Below the boneddigion the unfree classes were incap-
able of bearing arms and of horsemanship, and their
evidence was of no value against the classes above
them. The tasog, or villein, could not possess family
land, but had rights of occupation of servile land.*
It may be conjectured, however, that the position
gradually, if slowly, improved in course of time. There
was also a great distinction between laymen and clerics.
The latter, while enjoying certain immunities or
privileges, were also subject to some disqualifications.
The Church possessed a good deal of land granted from
the tribal stock, or by the lord.® Churchmen had their
own courts, and were exempt from the jurisdiction of
the civil courts, though they might sue laymen in them.
These privileges generally agreed with those that the
Church struggled everywhere so persistently through-
out the Middle Ages to attain.^

The highest lay court was that of the king or prince,
to which, in addition to jurisdiction in certain disputes
touching the king, or his household, there was an appeal
from the local courts of the cantref and the cymwd.
The laws among other things lay down minutely the
number, duties, order of precedence, maintenance, and
perquisites of the officers of the royal household, the
^ Ibid., 205 sqq. ^ Ibid., 214. ^ Ibid,, 216. ^ Ibid., 217.

CONSTITUTIONAL LAW 4T

value of the testimony of various classes of the com-
munity, the penalties for insult, injury, and killing of
the members of different classes, the rights of the king
to entertainment and contribution for himself and his
retinue on progress, the rights of the kin to vengeance
for the death of a member and their liability to contribute
to the fine of any member for a crime — all of them
notes of the transition of society from a tribal condition
to that of a modern civilized state ^

Wade-Evans, Welsh Medieval Law," passim.

CHAPTER III

PERSONAL RIGHTS AND LIABILITIES

W E have next to consider the rights as between
themselves of the component members of a
relatively primitive society. Here the first
observation to be made is that, at all events in the
societies that have been most fully investigated, the
unit is not the individual but the kin. The individual .
is but part of the kin. If he be injured, it is the kin
which is injured. If he be slain, it is the blood of the
kin that has been shed, and the kin is entitled to com-
pensation or to vengeance. If he commit a wrong, the
whole kin is involved ; and every member is liable, not
as an individual, but as part of the kin that committed
the wrong.

In Australia, Africa, and America the kin usually
takes shape as a totemic clan. A totemic clan is a
body of real or reputed kinsmen named from some
animal, plant, or occasionally from some other pheno-
menon, with which its members claim a mystical
connexion. Often the clan is believed to be descended
from the object whose name *it bears. If that object
be an animal or plant the entire species is sacred.
Every member of the animal species is held to be
related to the clan, and no member of the clan will

48

PERSONAL RIGHTS AND LIABILITIES 49

ordinarily take its life or eat of it ; and frequently,
on the other hand, it is regarded as exercising some
sort of protective influence over its human clients or
relatives.

This object is called the totem, a word derived from
the Algonkian languages of North America, and expres-
sive of brother-sister kinship. The descent of a totemic
clan is counted through one side only, either the father
or the mother; originally, there is reason to believe,
everywhere through . the mother. Intermarriage be-
tween members of the clan is strictly forbidden : this
is the rule of exogamy. Sometimes clans band together
in phratries which are held to have a near relationship
with one another. When this is the case there are
usually two phratries in a tribe, and intermarriage is
then permitted only between members of opposite
phratries. The rule in question holds good in general
for the North American totemic tribes. The Australian
exogamic institutions, described in a previous chapter,
seem to be a development from it.

In South Africa the totemic organization had long
been decadent. It is probable that exogamy has
leased to be observed by the Bechuana, though it
maintains an existence among the Zulus and some other
tribes.^ Farther north the organization is in greater
strength, though in many tribes, in consequence of the
tendency to reckon descent through the father instead
of the mother (which is believed to have been the
original reckoning of all totepaic peoples), it is under-
going a transformation. A consequence of this among
the Baganda and their neighbouring peoples is that a
man is prohibited from marrying into either liis father's
^ Frazer, '* Totemism and Exogamy,'* II, 378, 382.

4

50

PRIMITIVE LAW

or his mother's clan.^ The peoples of Central Africa
who are not Bantu are not all divided into totemic
clans. Where they are organized on a clan basis they
in general observe the rule of exogamy.* The same may
also be said of the negroes of West Africa.*

The aboriginal tribes of India are also organized in
totemic clans, or where not now so organized they
display remains of a former dan-system. Exogamy is
a usual feature of the S37stem. Totemic clans are also
the basis of society in some parts of Indonesia and in
Melanesia. Exogamy is generally found with the
totemic organization ; but in many of the Melanesian
islands society is organized in marriage-classes on lines
analogous to, but less complex than, those of Australia,
and the exogamic rule attaches to these dasses rather
than to the totemic dans.^

In the absence or breakdown of the clan-organization
exogamy takes a different form : it is often regulated
by locality. A man may not then marry a woman of
his own district, or his own village. Thus, in the Kulin
tribe in what is now the colony of Victoria, Australia,
the wife had to be found from a distance ; and, among
their neighbours and kinsmen the Kumai, a man might
not marry a woman of his own district ; his choice
was limited to women of certain districts who had by
tradition connuUum with that to which he belonged.
Here it is probable the exogamic regulations were not
imconnected with the dan-organization. Descent was
traced through the father; and the Australian rule,

Frazer, “ Totemism and Exogamy,'* IJ, 453, 456, 458,

462, 473.

» Ibid., 448, 419, 427.

Ibid,, 562, 579.

« Ibid., Chaps. V, VI, VII, IX, and X, passim.

PERSONAL RIGHTS AND LIABILITIES 51

which required the wife to go to her husband's camp
and reside there with him, had the effect of congre-
gating together the clansmen, so that one clan would
occupy one district and a different clan another district.
Hence the districts having connuhium would probably
be districts settled by different clans and thus inter-
marriageable.^ More strictly local was the exogamy
of the Punches of Bogotu, of whom it is related that the
men and women of one town did not intermarry, but
if a sister were born in a different town from her brother
he was not prevented from marrying her.* The Orang
Laut of the Malay Peninsula, who formerly lived by the
sea, are said to have taken wives only from another
community than their own.® It may, however, be
suspected that in all cases of local exogamy the original
reason was to avoid marrying into the same kin. It is
expressly said of the Panches that the men and women
of one town held themselves to be brothers and sisters,
and ** the impediment of kinship was sacred to them.”
The tribes of the Upper Amazons, who live in small
communities in the primeval forests, each community
in a common dwelling, have a preference for marrying
within the tribe ; yet exogamy is very strictly enforced
as regards the community, because “all within the
household are held to be kin.” * So of the Mafulu of
New Guinea we are told: “Marriages are usually
contracted with women of another community, though
sometimes the wife will belong to another clan in the

same community. Very rarely only is she of another
village of the same clan, and stiU more rarely is she of
the same village, clan-exogamy being the rule, and
marriages within the clan, and still more within the
village, being regarded as irregular and undesirable,
and people who have contracted them being considered
as having done wrong." ^

As an alternative to local exogamy there is found in
other tribes which have no clan-organization a pro-
hibition to marry any person who has an ancestor in
common with the other spouse as far back as can be
ascertained, or (as some tribes forbid) for a certain
number of generations. What may have been the
cause of these prohibitions is still undetermined. Every
hypothesis hitherto offered by anthropologists is
unsatisfactory, and the problem need not detain us.
Certain it is, however, that the sense of kindred begins
to widen, even on a low plane of culture, beyond the
kinship acknowledged in the clan-system. The tics
of nature are recognized in the relations of daily life
before the mechanism of birth, through which these ties
originate, is understood, and probably before they
are imperfectly formulated in the clan-system. The
prohibition to marry near kin follows their recogni-
tion.

When society is organized by clans the members of a
clan are considered between themselves as brothers and
sisters. Their duty to one another is one of mutual
defence and support. An offence against one is an
offence against all, and inftnediately unites the clan
against the offender and his clan. For, conversely, the
offence of one member is the offence of all. If a
1 Williamson, ** Mafulu,** 168.

PERSONAL RIGHTS AND LIABILITIES 53

member of the clan be killed, by so much is the strength
of the clan reduced. Compensation must therefore be
obtained either by corresponding reduction of the
strength of the offending clan by the death of a member,
or as civilization advances by a payment of goods or
money. This kind of compensation is comparatively
late. In low stages of civilization revenge by the
slaughter of one of the offending clan is the rule. Nor
does it matter that the revenge is on the person of one
whom we should regard as entirely innocent : it is
enough that he belongs to the offending clan. It is the
duty of every member of the clan offended to exact
revenge ; and the responsibility of the injury rests not
merely on the actual individual offender but, by virtue
of the solidarity of the clan as the social unit, on every
member of his clan.^

Thus begins a blood-feud, which may last for genera-
tions. Indeed, it begins not necessarily from a deed
of violence, but sometimes from a purely imaginary
wrong. Amongst the Central Australian natives
there is no such thing as belief in natural death ; how-
ever old or decrepit a man or woman may be when this
takes place, it is at once supposed that it has been
brought about by the magic influence of some enemy,
and in the normal condition of the tribe the death of
an individual is followed by the murder of someone else
who is supposed to be guilty of having caused the
death.” 2 As the account of the proceedings of an
avenging party shows, the vengeance is wreaked in such
a case not of necessity on Ihe person who is supposed to
be guilty but upon one of his clan, or even, where the

^ Fison and Howitt, " Kamilaroi and Kurnai," 157.

Spencer and Gillen, " Central Tribes," 476.

54

PRIMITIVE LAW

guilt is laid at the door of another tribe it is enough
to avenge it upon one of that tribe. At first every
member of the offending clan is subject to such ven-
geance, but as civilization advances the right of
vengeance is gradually limited. Women and children
arc often, for instance, exempted. As clans decay,
only the offender and his immediate kin remain liable,
and only the immediate kin according to their nearness
of blood are responsible for pursuing vengeance and
entitled to the fruits.

The clan-system, however, makes no provision for
a wrong inflicted by one member of the same clan
upon another. The clan cannot pursue a member of
its own body with vengeance. Yet serious misdeeds
may be committed by members of the clan on one
another, such as, in addition to homicide, adultery, rape,
theft, and other crimes which are apt to lead to
quarrels.

Where it is possible, the acts complained of are doubt-
less ignored, or they may be recognized as part of the
customs of the tribe. So in Samoa it ** was not wrong
to steal from the plantation of a relative ; in fact, it
was not called stealing." We are told : " The indus-
trious man may work, whilst the lazy relative may help
himself to the fruit of his labours." As between
relatives, in fact, there was what was in effect a kind of
communism. The organization of society in Samoa has
passed, or is passing, out of the clan-system in which
such a custom probably began, and the right of the
clansman to the fruits of another clansman’s labour,
or another clansman’s property, has concentrated in
the family.^ Some such explanation may perhaps
^ Brown, Melanesians and Polynesians,*' 262, 263, 264.

PERSONAL RIGHTS AND LIABILITIES 55

account for the similar liberties which are allowed to
uterine nephews in more than one of the Bantu tribes
of Africa.^

Where, however, a wrong cannot be ignored, as in
the case of a turbulent and defiant member of the clan,
it may still be possible for a general assembly of the
clan to cast him off and outlaw him, a proceeding that
we shall consider under the head of “ Sanctions." The
Kiwai of New Guinea have discovered another mode of
dealing with the doer of a wrong, which, by reason of
his being a clansman, tribal law does not permit them
to avenge, or when he is, though not a clansman, so
powerful a member of the community that they dare not.
The difficulty is solved by employing another person,
who is not forbidden by tribal law or not afraid of
incurring the hostility of the wrong-doer, to carry out the
punishment. To do this the person wronged or the
person on whom the duty lies of avenging the wrong
sends a gift of weapons to the substitute he has chosen.
In a small community the wrong that has been done is
usually notorious. Hence the person to whom the
weapons are sent understands the gift without a word
being said and its acceptance is an undertaking to
perform what is required. He keeps the weapons until
he has fulfilled the undertaking and then, after being
paid for his services, he returns them.® But we are not
told whether the consequence is to start a new blood-
feud.

After the slaughter of a number of kinsmen on both
sides in a blood-feud the participants gradually get
tired of the state of hostility, and of themselves, or by

See infra, p. 64.

A. P. Lyons. " Man," XXI, 24-27.

56

PRIMITIVE LAW

the assistance of friends on both sides, make a cere-
monial pact of peace, in which the number of victims
is reckoned up ; and sometimes one or more marriages
between the contending kins may seal the bargain, or
payment may be made by way of compensation.
Finally, as we shall see hereafter, payment for bloodshed
becomes the customary sanction. The liability for the
payment falls on the clan of the original wrong-doer,
unless the toll of lives taken in the feud is heavily
against them. When the clan-systcm has decayed
the liability rests on the family of the culprit, each
of whom has to contribute in proportion to his nearness
in blood. When it is made, the pajnncnt is shared
among the clansmen or, as the case may be, among the
more immediate kin of the slaughtered or injured man
in similar proportions. An example of these payments
for homicide may be taken from the mediaeval Welsh
laws. They are of great complexity. First it should
be noted that ecclesiastics who arc related to either
party neither pay nor receive any portion of the murder-
fine ; nor does any person who is a monk, or leprous,
or dumb, or an idiot ; and all such persons are pro-
hibited from taking vengeance for any relative murdered,
nor are they liable to vengeance as of the kin of the
murderer. The murder-fine, called the galanas, is
divided into three parts, one of which is known as the
murderer's third. This is paid by the culprit himself,
his father, his mother, and his brothers and sisters, the
murderer being actually liable for no more than one-
third of it ; the other two-fhirds of the murderer's
third are paid by his father, mother, brothers, and
sisters in equal shares, save that a woman only pays
one-half of a man's share. The whole of the murderer's

PERSONAL RIGHTS AND LIABILITIES 67

one-third share of the galams is paid to the victim's
parents and his brothers and sisters. The remaining
two-thirds of the galanas are imposed on the culprit's
remoter kin, and are paid as to two-thirds by his father's
kin and as to one-third by his mother's kin, beginning
with a first cousin, who is reckoned as the fifth remove
from the murderer, down to the fifth cousin, who is
reckoned as the ninth remove from the murderer;
and it is received by the corresponding kinsmen on the
side of the victim. The rule of such payments is that
every successive generation nearer to the murderer or
murdered pays or receives double the amount of the
generation next below it. The wife gets no part of the
galanas, nor does she pay any. The children of the
murderer or murdered are equally exempt. In the one
^case the murderer's payment stands for them as well as
himself ; in the other case the care of them falls on their
immediate kin who receive the payment. But the
Welsh law recognized over and above the galanas what
was called the sarhdd, a payment by the murderer and
his kindred for the insult involved in the murder. Of
this the victim's widow, if any, gets one-third ; the
other two-thirds are received by his father and mother,
brothers and sisters.^

These elaborate rules are in a very late stage. While
they are manifestly derived from older laws relating
to the clan and its claim for vengeance or compensation,
the clan itself has disappeared; the claim for com-
pensation depends upon the more immediate kindred
in the precise measure in \^hich the members are related
to the victim, according, in general terms, to modem

reckoning of propinquity^ And the liability to com-
pensation is measured in the same way and is attached
to corresponding relatives of the murderer. The claim
to vengeance and the liability to it attach to the same
circle of kinsmen, and are in all respects precisely
complementary.

I have spoken of murder throughout. But it must
be remembered that no distinction is made by " primi-
tives ** between murder with malice aforethought and
accidental, or even justifiable, homicide. Every cas(3
of bloodshed demands vengeance, for the honour as
well as the integrity of the clan is involved. Con-
siderable progress in civilization is made before the
distinction in question is drawn. The Greeks do not
seem to have drawn it when the Homeric poems were
written. The Hebrews, however, in the late form in
which their legislation has come down to us, recognized ’
the distinction ; and in all their codes careful provision
is made for determining the guilt or innocence, from the
point of view of the intention of the manslayer. Citie s
of refuge are appointed to which he may flee, and where
he shall be temporarily safe from the pursuit of the
avenger of blood. Before the avenger of blood can
touch him he is to be solemnly tried by “ the congre-
gation.*' If declared innocent, he is to be restored to
the city of refuge to which he has fled, there to reside
until the death of the high priest, when he will be
permitted to return to “ the land of his possession."
But if at any time earlier he go beyond the bounds of
the city of refuge and the avenger of blood find him,
he may slay him without guilt. On the other hand,
if the manslayer upon trial be declared guilty of wilful
murder, he is to be delivered " into the hand of the

PERSONAL RIGHTS AND LIABILITIES 59

avenger of blood, that he may die ” * This is a great
step forward, though the exUe of the manslayer for a
period, possibly of years, until the death of the existing
high priest, and a strict limitation of his movements to
the city of refuge, are a concession to the ancient
demand for revenge for any death, however unpre-
meditated.

The advance is not unconnected with the decay,
leading to the ultimate disappearance, of the clan.
The clan on decay is not immediately succeeded by the
individual as the unit of society. The cause of its decay
is (apart from political events, such as those ar ising from
the clash of two or more peoples having different
institutions, or- other circumstances) the growing
consciousness of closer blood-ties than those of the
clan.

This consciousness expresses itself in the terms of
relationship which arise while the clan is yet in full
strength and persist beyond its dissolution. The
dan gives way to the family, a smaller and generally
more closely knit body of kinsmen, which takes over
its solidarity and joint responsibility. Gradually con-
centrating the responsibility on the actual manslayer
or other culprit on the one side, and on the " avenger
of blood” or other pursuer acting on behalf of the
immediate relatives of the slaughtered man (“his
father's house ”), or in case of any other crime on
behalf of the individual wronged and his family, on the
othCT side, it finally dissolves the solidarity and leaves
the individual as the now tecognized unit of society for
all pmposes. This, however, is the result of a long
evolution, accelerated or retarded by a variety of causes,

Exod. xxi, Num. xxxv, Deut. xix.

60 PRIMITIVE LAW

and can hardly be predicated of any primitive
community.

The family relationships fall next to be considered.
The foundation of the family is the conjugal union of
.man and woman. Humanity having slowly emerged
from a pre-human condition, naturally no records
remain to testify to the early development of sexual
relations. Those relations had become more or less
permanent among all peoples at the stage at which we
first meet with them in scientific inquiry or in the
accounts of travellers and missionaries. Their very
legends assume their existence as a standing institution,
and only here and there refer to a more fleeting con-
nexion as the rule among their long-departed pro-
genitors, or among some strange and probably hostile
aliens. Notwithstanding this, the forms of the con-
jugal connexion are so various that they seem to point
to the emergence of marriage out of a condition little
removed from promiscuity. We need not, however,
enter into the speculations and controversies on this
subject. Sexual relations are regulated, as well as
other relations, even in the lowest human societies.
We may illustrate the form of regulation by a few
examples.

In general the savage lays no embargo upon the
gratification of the sexual impulse by the unmarried
youth of either sex, provided the rule of exogamy or
that of prohibited degrees be not violated, and subject
in some cases to prior initiation into adult life by the
puberty ceremonies. Chastity has no value pef se\
and virginity in a bride is rarely insisted on, save where
a marriage-price has to be paid and is enhanced by it.
The case is altered by marriage. Jealousy develops,

PERSONAL RIGHTS AND LIABILITIES 61

usually but not always more strongly on the part of
the husband. Among the Bantu the penalty for
adultery is the death of the wife's seducer, and often of
the erring wife. This severity is rendered necessary
by the polygjmy in which these races indulge. Among
the Bantu of West Africa the severity is emphasized
by the wide definition given to adultery. Miss Kingsley
says it is “ often only a matter of laying your hand, even
in self-defence from a virago, on a woman, or brushing
against her on the path. These accusations of adultery
are, next to witchcraft, the great social danger to the
West Coast native, and they are often made merely from
motives of extortion or spite, and without an atom of
truth in them." ‘ Miss Werner, speaking particularly
of the Yao and Angausa, says : " The man may be
(and frequently is) shot or speared by the husband ;
the wife is frequently let off with a warning the first
time, but for a second offence either killed or divorced
and sent back to her relatives, who in such a case must
return whatever present was made at the marriage. . . .
But in practice the matter is often arranged by paying
damages, or the guilty man may be sold into slavery." ^
In both these cases descent is traced through the mother
only. A fortiori, where the tracing of descent through
the father only has arisen, masculine jealousy might be
supposed to be emphasized. This, however, does not
appear to be so. The civilized fear of tainting the
offspring does not enter into savage consideration. The
marriage ceremonies of many modern savages include
the requirement that the bride shall submit to the

' Kingsley, ** Travels,” 497.
1* X68.

Cf. Bastian, ” Loango KAste,”

• Werner, " Brit. Cent. Afr.,” 265.

62

PRIMITIVE LAW

embraces of a number of men before she reaches the
arms of her bridegroom. The Arunta bride undergoes
repeated sexual intercourse with several men, beginning
with some belonging to marriage-classes with whom
intercourse is forbidden at all other times. ^ In anti-
quity the Nasamones and the Augilse, both Cyrenaic
tribes, as well as the Balearic islanders, compelled the
bride to submit to intercourse with all the male wedding
guests.* Moreover, the husband has often the right
and the custom to lend his wife to other men by way of
hospitality and for other reasons. In particular, it
is not infrequent that he does so for the express purpose
that they may beget children for him. The sacred law
of Manu lays down the rules to be observed and
the persons to whom the wife can be lent for this
purpose.*

The practice was well known to the ancient Arabs,
and is extensively used in Africa.^ The offspring of such
embraces are reckoned to the husband, though not a
drop of his blood flows in their veins. There are also
ceremonial occasions on which general licence is a part
of the religious rites, as on several of the Molucca
Islands and elsewhere.

The truth is that descent through the father is a legal
fiction. The definition of adultery in the lower culture
differs from ours. So long as the marriage subsists

the husband considers that he has, subject to the require-
ments of native law, the exclusive right to the use of
his wife, or to the disposal of her body. What he
complains of is her disposal of it without his consent or
the compulsion of social or religious tradition. Over
and over again the infringement of this right is called
in so many words “ stealing,” and treated as such.
The wife’s paramour, unsanctioned either by the husband
or by native law, is the thief who has invaded and
appropriated the property of the husband. Both he
and the wife are often liable to death, though the wife
is usually let off with a less punishment, or even for-
given, while the full weight of the consequences — death
or a more or less substantial fine — ^falls on her partner in
guilt. Repeated infidelity, however ends in punishment
or dissolution of the marriage. But the moral question
— the question of chastity — ^is not raised : it is foreign
to the ideas of these stages of civilization. Nor is it
unusual among many peoples to exchange wives, not
merely upon occasion but for weeks at a time (as among
the Eskimo), or even permanently. It is diflBcult to
generalize amid the wide differences of custom.

In some instances objection seems not to be raised
to a special class of lover. Among the Santals, a
Dravidian tribe in India, a man’s younger brother may
share his wife with impunity, provided their relations
are not public. It has been conjectured that this is a
relic of fraternal polyandry.^ To the Masai of East
Africa adultery is an idea unknown. Masai society is
organized in “ ages,” or periods of about seven and a
half years; and it is no offence for a man to have

^ Risley, “ Tribes and Castes of Bengal,” Ethnog. Glossary,
II, 229.

64

PRIMITIVE LAW

intercourse with a woman^ — even a married woman —
belonging to his own “ age." ^ More to the south the
Thonga tribe, though reckoning kinship through the
father only, possesses many relics of a former uterine
descent. Among these relics are the close relations
between a maternal uncle and his nephew. The nephew
in certain contingencies inherits his uncle's widows —
a right he is accustomed to anticipate whenever he
chooses. Even before his uncle's death he calls these
ladies " wives " and they call him " husband." He is
entitled to amuse himself with any of them as a be-
trothed lover — a privilege which extends very far.
When he visits his uncle he deposits his sleeping-mat
in the hut of the wife of his preference, and stays with
her so long as he sojourns at the kraal.^ If we may
judge from their tales, the Haida of Queen Charlotte's
Islands, on the north-western coast of America, were
even more complaisant. Wc find there uncles expressly
putting their wives at their nephews' disposal.® It is
probable that in such cases as these wc have examples
of the solidarity of the clan. The entire clan, or family
as the case may be, has probably contributed to the
bride-price paid for these wives, and its members have
consequently claims upon them which the husband
is bound to recognize. This would not apply to the
Masai. But there a very close bond unites the brethren
of the same " age," and on the marriage of one of them
his companions often claim priority of intercourse
with the bride.^

^ Hollis, " Masai/* 261, 312.

Junod, ** Baronga/* 77. Cf., however, ibid.,*' South Africa

Tribe,** I, 227, 228.

® ** Jesup Exped.,*' X, 604, 746.

Merker, 49.

PERSONitL RIGHTS AND LIABILITIES 66

We have no space to consider the conjugal relations
of the lower culture in detail. It may, however, be
said that, while jealousy on the part of either spouse
is probably less developed than in the more civilized
races, and while morals in this as well as other directions
are certainly less developed, marriage, the more or less
permanent union of man and woman, is everywhere
found, and the derogations from the exclusive relations
of husband and wife are also the subject of customs
which have the force of law and are fully understood in
the community bound by them. The various forms
of marriage are polyandry, usually fraternal as in Tibet
and the south of India, by which a woman is married
to a band of brothers; polyg5my, by which a man
takes simultaneously or one after another as he pleases
a number of women as wives, a practice much favoured
in Africa, but common in the case of chiefs and wealthy
men everywhere ; and monogamy, the union of one
man with one woman, which is, in practice, the lot of
most men and women the world over.

The manner of entering into marriage varies greatly.
It is frequently arranged by a previous betrothal. In
this case the consent of parents or relatives is required.
It is not uncommon among many peoples to betroth
mere children, even to betroth them before birth
conditionally upon the sex being suitable. It is said
that an adult Carib will sometimes bespeak an unborn
babe, and in such cases he paints the mother’s body
with a red cross. If the child prove a girl, this is a
sufficient betrothal. Among the same people cousins
of the opposite sexes, if on the mother’s side, are reported
to have been considered as betrothed as soon as they
were born. Where maternal descent prevails, and in

5

66

PRIMITIVE LAW

some cases under paternal descent, the parties have
greater choice. Marriage is then preceded by wooing,
of which sexual intercourse is generally a part. The
final marriage is in most cases public and with the
definite concurrence of the kin on both sides. The
pa5mient of a bride-price is common. It is not a
purchase of the bride, but of the right to cohabitation,
with the consequence often of the transfer from the
wife’s kin to the husband of the offspring of the marriage.
The payment is not necessarily completed before tlie
ceremony — sometimes not for years afterwards : it is
enough if it be stipulated and an earnest paid. An
extreme example of delay in full payment is the custom
in two contiguous districts of the island of Sumatra,
in which, when the two families concerned continue
on good terms, the balance of the jujur, or bride-price,
remains sometimes unadjusted to the second and third
generation, and it is not uncommon to see a man suing
for the jujuf of the sister of his grandfather." ^ Another
important and beneficent effect of the payment of a
bride-price, as among the Bantu of South Africa, is
that it constitutes the kin of the bride, who receive
shares, her protectors ever on the watch to prevent ill-
usage by the husband in whose kraal she lives, and it
operates as a caution to the husband, who dare not
drive her into separation and refusal to return to him,
because he knows that in such a case her kin would be
united in her support, and he would lose both his wife
and the bride-price he had paid for her.*

^ Marsden, 259. «

‘ About forty years ago the Cape Government held an exhaus-
tive inquiry into this and other native laws and customs and
reported fully upon them. See the report and evidence. Cape
Town, 1883, passim.

PERSONAL RIGHTS AND LIABILITIES 67

Marriage by capture of the bride is a form found in
many places. There are, or were not very long ago,
relics of it to be found even in Europe. How far such
a form is to be traced to hostile capture, like that of
the Sabine women, has been much debated. While
hostile capture has been undoubtedly practised in the
past, and perhaps still is to some extent, most cases that
have come under scientific investigation are those of
brides taken by one kin from another in regard to which
there is no hostile feeling and consequently no hostile
capture. As a form of marriage they are usually
preceded by consent on both sides, and often they are
more of the nature of elopements than of capture.
The reluctance on the part of the bride or her clan is
more or less simulated. Where there is real reluctance,
.it is to be put down to that of a girl going to a life among
unknown, or little known, people and the terror of a
mother-in-law, or else to the feeling of being parted
from her female relatives and friends, and on their
side of losing a companion of their own sex.

A very archaic method of obtaining a wife is by
exchange for a sister. By this means two men would
be fitted with wives. The exchange of sisters is a
practice largely followed in Australia, where the stage
of civilization is too low to have developed the bride-
price. It is found also in Baluchistan and among the
non-Aryan tribes of India, also in New Guinea and the
Western Islands of Torres Straits, in the French Soudan,
and among the peasantry of Palestine. It must be
regarded as a species of •barter where payment for a
bride is either unknown or beyond the means of a
bridegroom. Seeing, moreover, that kinship in most
of these cases is reckoned on what is called the classi-

68

PRIMITIVE LAW

ficatory system, a larger number than the offspring of
the same parents is included as sisters, and conse-
quently there would be greater choice of persons. Sir
James Frazer has recently shown some reason for
believing that such a practice may have originated
the very common practice of the marriage of cross-
cousins — ^that is, the marriage of a brother's child to a
sister's child. Under the classificatory system the
children of brothers or the children of sisters, according
as descent is reckoned through the father or through
the mother, are brothers and sisters. As such they
would come under the law of exogamy and would be
ineligible for marriage among themselves. But cross-
cousins who are related to a common grandparent
through parents of opposite sexes stand, as Sir James
Frazer puts it, on a wholly different footing. Whether
kindred be reckoned through the father only or the
mother only, such cousins would belong to different
clans and so be marriageable ; and this qualification
has in many cases been continued by the system of
prohibited degrees which has supplemented exogamy
or taken its place. Where the marriage of cross-
cousins is permitted it is usually regarded as the best
kind of marriage. It gathers up and promotes family
feeling ; and among peoples that have made advances
in civilization it has the additional recommendation
of helping to preserve family property in, or at all
events in the second generation to return it to, the
family.^

Marriage does not necessarily involve the taking of
the bride away from her home to live with her hud^and.
Among many tribes they do not even live together :

1 Frazer, ** F, L. Old Test.,** II, 205 sqq.

PERSONAL RIGHTS AND LIABILITIES 69

the husband simply visits his wife. This is the arrange-
ment among the NSlyars of India,' the Syntengs of
Assam,* the Orang Mamaq of Sumatra,® and previous to
the fourteenth century the Japanese.* In all such
cases the woman is the important member of the house-
hold ; she or her mother rules it, and descent is reckoned
through her and not through the man. Visiting
gradually expands into the permanent residence of the
husband with the wife and her family. Even then he
does not always become the head of the household :
he is subject to his wife and her family, and often finds
the servitude insupportable. When this is so, some
peoples provide a way out of the difficulty by accepting
a bride-price, or an increased bride-price if a bride-
price has been already paid or agreed on, as a con-
sideration for allowing the husband to carry off his
wife and children. This generally, but not always,
involves a change in the reckoning of descent : it is
then reckoned through the father and not through the
mother. In fact, we find almost all possible stages
of the transition between the stage, certainly very early
and apparently the earliest to which we are able to
penetrate, in which the husband merely visits the wife
and has no authority in the household or over the
children, and that in which he is absolute master of the
household and of his wives and children, and descent
is reckoned through him.

is hardly ever indissoluble. An end is capable of being
put to it by separation almost everywhere. The will
of the parties, or of one of them only, is often sufficient.
In Arabia, even long since the promulgation of Islam,
the women of some tribes might marry as they pleased,
but the tent and all that was in it belonged to the
wife. The husband might depart when he liked. In
such a case he left the tent and its furniture with his
wife, who undertook the whole charge of any children
there might be of the marriage. Or, conversely, the
wife had a right to dismiss her husband — in some cases
by simply turning the tent round, so as to make the
tent-door face in the opposite direction. This was a
definite dismissal ; and the husband entered no more.^
Similar customs are related of certain North American
tribes.

Separation of husband and wife with consequent
dissolution of the marriage is in many places quite an
ordinary incident. In the Marshall Islands, husband
and wife usually separate after a longer or shorter
time.* On Yap, one of the Pelew Islands, there is
hardly a pair of middle age who have not been divorced,
though it is constantly observed that after various
conjugal changes in the meantime they ultimately
return to one another.® But easy as divorce is here,
and without special formalities, some cause, however
trivial, must be alleged. It is not difficult to find such
a cause. Adultery, as defined by Yap law, barrenness,
or even impertinence by the wife to her husband's
mother is enough.* The payment of a bride-price,

^ Robertson Smith, ** Kinship," 64, 65.

Steinmetz, " Rechtsverhaltnisse," 432, 433.

® A. Senfft, " Globus." XCI, 141. * Ibid,, 142.

PERSONAL RIGHTS AND LIABILITIES 71

necessitating repayment by the wife’s kin on divorce
by the husband for the fault of the wife, or the for-
feiture by the husband of all claim to it for divorce
without sufficient cause, is often a great hindrance
to divorce in the lower culture. But no bride-price is
paid on Yap ; hence dissolution of marriage is facili-
tated. ‘ A Malagasy proverb compares marriage to a
knot so lightly tied that it can be undone with the
slightest touch.* It rests with the Malagasy husband
to undo it, though in certain circumstances the wife
can practically compel divorce. The husband is not
bound to faithfulness to his wife. He, however,
generally consults his first wife before taking a
second ; but if she refuse her consent it is a ground
of divorce.®

Generally it may be said that the husband, if on a
social equality with his wife, is not among the lower
races compelled to conjugal fidelity, as the wife most
frequently is supposed to be. And where the penalty
for the wife’s unfaithfulness is nominally death, he is
in most cases satisfied by personal chastisement or by
divorcing her. In some of the Dutch East Indian
islands divorce, formerly unknown, has been intro-
duced in place of the original penalty, death, to which
a civilized government was unaccountably opposed.

Almost as various as the conditions of separation
(or what we call divorce) are the forms to be observed.
Often there are none : the pair simply cease to cohabit,
or where the husband is a mere visitor he ceases to
call, and both parties seek other mates. Among the
Khasis of Assam, separation is occasioned by a variety

^ Ibid,, 141. * Sibree, 250.

” Ibid,, 253, 254 ; Ellis, ** Madagascar,'* I, 168, 172.

72 PRIMITIVE LAW

of causes, such as adultery, barrenness, incompatibility
of temperament ; or it may come about simply by
agreement. But a ceremony which must be witnessed
by some acquaintances and friends, as well as the
relatives on both sides, is performed by an exchange of
cowries or small coins, which the husband finally throws
on the ground. A crier is then sent round the village
to proclaim the divorce, saying in so many words :

Hear, O villagers, that U. and K. have become
separated in the presence of the elders. Hei ! thou,
O young man, canst go and make love to K., for she is
now unmarried ; and thou, O spinster, canst make love
to U. Hei I there is no let or hindrance from hence-
forth.**^ The Musquakie Indians of North America
are wont to allow a married pair who cannot agree
to separate. But they must first go hand-in-hand to the
head chief's council, where the one who first suggested
parting asks for a divorce. A counsellor hands from
a bundle kept ready for the purpose a dry twig to the
petitioner. He (or she) hands it to the unsatisfactory
mate, who breaks it and drops the fragments on the
ground. From that moment both the man and the
woman are free to marry again, and sometimes do so.
No one loses caste by reason of a divorce, but unlike a
maiden there is no long and romantic courtship for a
divorced woman, any more than for a widow.* The
Barfe-speaking Toradjas of Mid-Celebes allow divorce,
but it must take place in public, just as the marriage
has taken place in public. When the village elders have
tried in vain to heal the quarrel, and failing this have
assessed the rights and wrongs of the parties, their

^ Guidon. ** Khasis,*' 79, 80.

Miss Owen, F. L. Musquakie Indians,** 146.

PERSONAL RIGHTS AND LIABILITIES 78

relations henceforth to the children, and the com-
pensation, of any, to be paid on either side, a length of
raftan is halved in two and each party keeps a portion.
Or, with some tribes, it is a coco-nut that is cut in two,
and one piece given with a lemon to each party. This
formal proceeding is looked upon as very solenrn, as a
sort of oath, and not to be omitted. The husband
cannot afterwards wed the same woman again ; or if
he does he must pay a new bride-price, and a fine into
the bargain.^ It is needless further to illustrate the
diversity of ceremony required for a divorce.

We go on to consider the rights of the child. Infanti-
cide is largely practised in the lower culture, both in
the shape of abortion and of murder after birth. The
conditions of savage life are such that it is impossible
.for a woman who has to follow the wanderings of the
tribe and to contribute materially by her labour to the
sustenance of the family, to rear more than one or two
young children who arc still of an age to depend upon
her care. She is compelled to suckle them for much
longer than is necessary under civilized conditions, and
the attempt to feed them with other food leads to
malnutrition with its sequel in disease and frequently
death. The testimony to this cause of infanticide is
universal, though the reasons given by savages them-
selves are often superstitious. Naturally, deformed and
weakling children are most readily destroyed. Twins
and children born in other than the ordinary course,
or with other than the ordinary characteristics, are
generally condemned. The infant's fate is as a rule
decided at birth, before it has had time to obtain a

' Adrian! en Kruyt, “ De Bar^c-sprekende Toradjas/*
34-36.

74

PRIMITIVE LAW

hold on parental affection. Among the lowest peoples,
as the Australian Blackfellows, the decision is usually
left to the mother. The Kai of north-eastern New
Guinea leave it to the mother and sisters of the woman
who has given birth to the child ; no man has anything
to say in the matter, which is regarded as a woman's
affair.^ In communities in which the fathers' power is
developed it is he who as head of the household deter-
mines the question. Among the ancient Norse the
child, when born, was laid on the ground. If the
father accepted it as his own and decided to rear it he
picked it up ; otherwise it was put to death or exposed
and abandoned. In Germany, where a similar rite
was in use, it was the midwife who by permission of
the father picked it up and handed it to him ; hence
the German word for midwife (hehamme).^ The custom^
among the Romans seems to have been the same.®
As between the two sexes a girl is more usually put to
death or exposed than a boy, for in savage conditions
a boy is more necessary for the life of the community
by the services he will fulfil as hunter and warrior.
In India female infanticide has been almost universal,
stimulated by the prevalent hypergamy, the custom of
striving to marry a daughter in a caste higher than the
one in which she is born and the inordinate expense to
her father of such a marriage.* Among the Bantu of
South Africa, on the other hand, where a bride-price,

often heavy, must be paid by the bridegroom, girls
are more desired than boys.

Where mother-right prevails little distinction is made
between legitimate and illegitimate children. In either
case they swell the family or the clan of the mother, and
such increase is always welcome, provided the means of
subsistence are not trenched upon. It is usual, how-
ever, if a girl, in the conditions of free access of the
unmarried of both sexes which are common, be found
pregnant, that efforts are made to get her married to
her lover. Under father-right the supervision of
sexual relations between the unmarried becomes
stricter, because virginity in a bride is prized, and hence
attains a greater market value. This leads gradually
to the growth of sexual morality, though, owing to the
increased value of children there is much difference in
this respect : a girl who has already given evidence of
her fecundity is the more easily married on that account ;
and a husband will even gladly take her ** ready-made
family " as his own, and they become his legal children.
Father-right is generally accompanied by a develop-
ment of ancestor-worship. A son is therefore required
to carry on the ancestral rites, which cannot be done
by a stranger. It is his duty not only to perform them
himself, but also to procure in his turn a son to continue
them after his death. To acquire a son who can be so
reckoned, a man will therefore accept as his own his
wife's offspring, though he had no part in begetting
him.

At or about the age oi puberty among the lowest
races, and indeed far up in the stages of civilization, a
child is required to undergo the puberty ceremonies.
In the case of a boy these ceremonies often involve

76

PRIMITIVE LAW

permanent separation from his mother and bring his
childhood to an end. He is secluded for the ceremony
with male companions of the same age ; they are
drilled in endurance and courage by the test of hard-
ships, the traditions and mysteries of the tribe are
revealed to them, and they are carefully instructed in
the laws and customs which they will have as adults
to observe. Among many peoples they suffer mutila-
tion, sometimes merely by the knocking out of a tooth,
but commonly in the eastern hemisphere by circum-
cision. The details of the rites are very various, and
it is unnecessary to describe them. In Australia, where
they have been greatly developed, in Central and South
Africa (among the Bantu tribes), and elsewhere, it is
usual to perform them upon a number of youths at the
same time. In Australia a disciplinary object is
prominent to render the novices amenable to the
rule of the old men, and so to perpetuate the geron-
tocracy. Among the Bantu the sexual element in the
rites seems to prevail, and they are accordingly followed
by a temporary outburst of licentiousness. In North
America, on the contrary, the adolescent of an austerer
race submits to his experiences alone, with the intent
by fasting and penance not merely to prove his
powers of endurance, but also to gain for himself the
compassion of the higher powers and as hunter and
warrior a supernatural helper on whom he can rely
amid all difficulties and tribulations.

Girls are subjected at puberty to corresponding rites.
On the first appearances of the menses they are every-
where among savage peoples isolated, frequently shut
up in the dark and only allowed out of doors in a limited
fashion by night and compelled to observe a number

PERSONAL RIGHTS AND LIABILITIES 77

ef other prohibitions, including a severe restriction of
the quantity and quality of their food, though the
opposite course is adopted in West Africa of fattening
them by stuffing them with food in the " paint-house "
in which they are incarcerated. This retirement is
enforced among different tribes for varying periods,
from a few days to months and even years. The
Bantu of Central and South Africa, in addition, collect
them in schools,*' similar to those of the boys, where
they are put through a like course of testing and instruc-
tion. They are then ready for sexual intercourse, often
anticipated among those voluptuous peoples, and for
marriage. Before marriage is allowed by the Arunta
and their neighbours in Central Australia girls are
obliged to submit to rites of mutilation as cruel and
senseless as those of the boys.' There, and in other
places, notably in the north of New Guinea among
the Banaro, the puberty and marriage rites are celebrated
at one and the same time and are indistinguishable.®

Thus, for a girl, marriage is the symbol and equivalent
of adult life. A boy, however, who has passed through
the puberty rites does not always attain complete
emancipation and equality as adult, until after further
trials and submission to his elders. Thus the Aus-
tralian youth has still to submit to many restrictions,
especially of food, from which he is only gradually
released. Among many peoples, before a youth is
recognized as a man, and in any case before it is possible
for him to marry, he must give undoubted proofs of his
valour and his success in hunting. In the East Indian

islands, where head-himting is practised, he must bring
home a human head. In North America a lover must
lay at his sweetheart's door substantial products of
the chase, ere he is successful in his suit.

In adult life, too, everyone finds himself fenced round
with restrictions. That the life of a savage is a life of
freedom has repeatedly been shown to be a mistake. In
truth there is no life more closely bound in fetters which
hamper or absolutely preclude movement in any
direction. He must do what his fathers have been
accustomed to do, and nothing else. Law and pre-
cedent bind him hand and foot. An experienced and
able missionary writes of the Bantu native of the Congo
Basin : “He has a wonderful power of imitation, but
he lacks invention and initiative ; but this lack is
undoubtedly due to the suppression of the inventive
faculty. For generations it has been the custom to
charge with witchcraft anyone who has commenced a
new industry or discovered a new article of barter.
The making of anything out of the ordinary has brought
on the maker a charge of witchcraft that again and
again has resulted in death by the ordeal. To know
more than others, to be more skilful than others, more
energetic, more acute in business, more smart in dress
has often caused a charge of witchcraft and death.
Therefore the native, to save his life and live in peace,
has smothered his inventive faculty and all spirit of
enterprise has been driven out of him."^ Not less
emphatic are Messrs. Spencer and Gillen of the Central
Australians : “As amongst all savage tribes, the
Australian native is bound hand and foot by custom.
What his forefathers did before him — that he must
1 Weeks, ** Among Congo Cannibals, 177.

PERSONAL RIGHTS AND LIABILITIES 79

do. If during the performance of a ceremony his
ancestors painted a white line across the forehead, that
line he must paint. Any infringement of custom,
within certain limitations, is visited with sure and often
severe punidiment.*’^

Most interesting of the innumerable rules thus ,
binding one in the lower culture is the observance of
prohibitions which to our mind have no logical ground.
That is, however, because we reason on totally different
lines from the “ primitive ** man. Not merely is the
ignorance of the “ primitive " very great, it is bounded
only by his immediate surroundings ; and these are
surveyed tlirough the medium only of his needs, his
fears, his desires, and his hopes. They thus remain
completely enveloped and tinted by an emotional
atmosphere, of which they cannot be divested. He
is unable to regard them dispassionately, objectively.
Unused to analysis, he cannot distinguish the facts
from his own feelings concerning them. Limited as
his knowledge is, the fear of the unknown is apt to
prevail in all his perceptions. Instinctively he takes
precautions ; and these precautions, handed down
through generations, harden into habits, into unreason-
ing superstitions. There is no individual thought,
his emotions arc collective, and — ^as collective emotions
always are — ^are emphasized until they become an
obsession. Under these influences prohibitions and
rules of procedure are evolved that a cool onlooker,
such as the savage cannot be, sees to be unnecessary,
useless, absurd. Acts are to be avoided, or on the
other hand to be done, under mysterious penalties.
Since, from his ignorance, the savage draws no line
^ Spencer and Gillen, "Central Tribes," ii.

80

PRIMITIVE LAW

between the natural and the supernatural, or rather
everything is equally natural to him, mysteries are a
part of his daily life. Magic is a matter of course ;
it is— at least in the early stages — ^indistinguishable
from religion, only gradually becomes separated and
never completely so ; though he learns to draw a line
between magic performed for the general good and
anti-social magic. The one he approves and practises ;
the other he reprobates and punishes. The very means
by which he protects himself from anti-social magic
are what we should call magical — amulets, m3^tical
rules and prohibitions. These avail not only against
human witchcraft (or anti-social magic), but also against
the mysterious beings — ^spirits, gods, demons — ^and
vague influences by which he deems himself sur-
rounded.

Prohibitions of the kind referred to are generally
known as taboos. The word taboo is Polynesian —
tabu or tapu — ^meaning set apart by way either of
sanctity or of pollution. It has been adopted into •
English and other civilized languages to express a
prohibition or restriction fortified by a mysterious
sanction, .such as is commonly found to bind peoples
in the lower culture, and in a .secondary and looser
sense as a shunning or prohibition by society of a person
or an act or line of conduct generally reprobated or
disliked. Though found everywhere among primitive
communities it is most influential in Pol3niesia and
Melanesia, where it has been developed into a great
engine of government. In New Zealand, for example,
every chief was surrounded by taboos. The sacredness
of which I have already spoken was derived from his
ancestors and his priestly functions in relation to them ;

PERSONAL RIGHTS AND LIABILITIES 81

and it extended to everything belonging to him or
coming in contact with him. It was in fact an attribute
or manifestation of ghostly power, the greater in
proportion to his descent and his earthly might : tem-
poral and spiritual power being often confused, or the
former being held to imply the latter. No one, there-
fore, could touch him or anything belonging to him ;
his house was tapu and no one could eat in it or light
his pipe from the fire, else the persons who did so would
die. On the other hand, if he himself touched anything
belonging to another person, or even if a drop of his
blood fell upon it, it became instantly tapu to him, and
its previous owner lost it. The applications of this
principle were endless in number. Among other
instances it is related that a chief lost his tinder-box.
Several persons successively found it and lit their pipes
from it. But when they learned to whom it belonged
they literally died of fright.' A missionary once found
a chief choking with a fish-bone in his throat, and none
of his followers dared to assist him, because it would
have been necessary to touch his head (his most sacred
part). The missionary boldly (with the aid of a pair
of scissors) extracted the bone, and thus saved the chief's
life. But when the latter had recovered his speech his
first words were — not thanks for the service thus
rendered to him, but a command to his followers to
seize the scissors as a payment for having touched his
sacred throat.®

Another application of the principle of taboo is that
rf the taboo-sign, by which plantations and fruit trees
ire protected from thieves. These signs are suspended

'Taylor, ** Te-ika-a-Mani,** 164 sqq,

Ibid, 518.

6

82

PRIMITIVE LAW

from, or affixed to, the objects to be protected ; they
are a S3mibolic claim by the owner, a prohibition to all
and sundry to interfere with the object, and a con-
ditional curse on the transgressor. Coco-nut leaflets
plaited in the form of a sea-pike and suspended from
the trees to be protected would prevent a would-be
thief from touching the fruit, lest the next time he
went to sea he should be mortally wounded by a fish
of the kind. Other signs denounce similar fates as a
penalty for breach of the owner's rights ; and
they are said to be most effective guardians.*
Such taboo-signs are not by any means confined
to Polynesia.

Many taboos are social or ritual in origin and intention.
Thus among the Ifugao of Luzon it is taboo for persons
of other districts to pass through a rice-field while it. is
being harvested; and indulgence in verbal abuse,
indelicate language, or reference to sexual matters,
and the commission of certain acts, are prohibited in
the presence of relatives of the opposite sex with whonT
marriage is forbidden. The infraction of this taboo is
a serious offence. * In Assam, among the Naga tribes
of Manipur, it is customary for a village to celebrate
what is called a genna (prohibition or taboo) on various
occasions, periodical or extraordinary, in the course
of which certain rites are performed. At these times
every one is compelled to abstain from labour, and the
village is closed against all entrance by persons outside
and all exit by persons from within. Moreover, certain
foods and drink are prohibited. The genna lasts for
several days, sometimes as many as ten. The custom

^ Turner, Nineteen Years in Polynesia,** 294.

» Barton, Univ. CoU. Sub.,** XV, 12.

PERSONAL RIGHTS AND LIABILITIES 88

is not confined to Assam, but is known over a consider-
able area, as far even as the Philippine Islands.^ Again,
it is forbidden by many peoples to mention the names
of their gods, or of the dead, especially the recently
dead, or even one's own name or the names of other
living persons. The supreme god of the Chinese is
referred to as Tien, Heaven, a circumlocution which we
ourselves often make use of.^ Similarly, the Berbers
of Southern Morocco, in speaking of the jinn in the
afternoon or evening, when the use of their name is
prohibited, refer to them as those others,” “ those
unseen,” or by equivalent phrases, just as the Irish
peasantry speak of the fairies as ” the gentry ” or in
some such way.® The Egyptian gods had secret names,
as the Hindu gods have to the present day, and nobody
dares to make use of them, The Kiowa of North
America drop from the language any word which
suggests the name of a person lately deceased, and
substitute for it another word : a custom which intro-
""duces. a considerable difficulty in tracing the philo-
logical connexion of words and the comparison with
presumably related tongues.^ A like custom is found
among many other peoples in the lower culture, notably
among the southern Bantu.® In Greenland the Eskimo
will not pronounce their own names. It is needless
to illustrate further a prohibition known in one form or
other all over the world in the lower culture.®

^ Hodson, " Naga Tribes,” 164 sqq , ; Barton, loc. cit,

Legge, ” Religions of China,” 8 ; Hilderic Friend, ” F. L.

Record,” IV, 76, citing Edkins.

Westermarck, ” Moral Ideas,” II, 640,

® ** Rep. Bur. Ethn.,” XVII, 152, 231.

® Leslie, ” Among the Zulus/* 173 ; Shooter, 221.

Rasmussen, 10.

84

PRIMITIVE LAW

Every ancient code of law, not excepting the Mosaic
legislation, comprises social and ritual prohibitions
and regulations of the kinds just referred to ; and they
are apparently placed on equal footing with the moral
commands of the code. Taboos of one kind or another
are in fact taboos universally observed. They are often
so ancient that their origin and meaning are undis-
coverable, they are rooted in the fear of the unknown ;
and, as Dr. Marett has pointed out, they do constitute
a defence against the magical or mysterious powers
imputed by tribes and societies of men to their
surroundings, whether natural or what we call
supernatural. The observance of the taboos of any
community is as much a duty to oneself and to the
community as that of any positive command concern-
ing the mutual relations of members of the community j
for the breach of these taboos may entail great and
unexpected evils, not only on the breaker but involving
the whole community of which he is a part.

CHAPTER IV

PROPERTY. OWNERSHIP. INHERITANCE.
BARTER. MONEY

I N the earliest stages of civilization now discoverable
mankind is possessed of no individual property
beyond the scanty clothing, the miserable orna-
ments, the weapons, and the few utensils in daily use.
•All other property known to tribes in this condition is
held in common by the community. Even the products
of the chase by which they live are not regarded as
solely the property of the successful hunter, but are
shared with other members of the community. How
far the right to share has extended varies among
different peoples. Possibly it originally included all
members of the community. Of the inhabitants of
Namaqualand (Hottentots, a pastoral people) it is
recorded that “ when a family kill a sheep they only
obtain a share of it, as the neighbours, who all know
what has been done, repair to the house and the whole is
eaten up before they leave it. This,'" we are told,
"seems from custom to be a kind of law among
them, which it would be difficult for a family to set
aside."^

^ J. Campbell, ** Travels,” 1815, 303. In another edition
dated in the same year, 420.

8JS

86

PRIMITIVE LAW

The Hottentots, however, are not on the lowest step
of civilization ; and whatever may be the cause of such
extensive rights to share food among them, hunting
tribes have generally limited these rights. The Veddas
of Ceylon, a very lowly race of aborigines, recognize
greater claims on the part of certain relatives than of
other members of the community. Dr. and Mrs.
Seligman report that " every Vedda so readily helps
all other members of the community, and shares any
game he may kill or honey he may take in so liberal
a manner, that at first it was difficult to determine
who were the individuals who had a special claim on
others of the group. Certainly at first sight it seemed
as if all game were equally divided among the members
of the group ; but after a little time we perceived that,
while an unmarried man looked especially after his.
mother, a married man's father-in-law had at least an
equal claim on his son-in-law, and in practice often
received more attention, since a man generally spent
most of his time with his wife’s family.” Accordingly
the wife’s father usually receives the largest share of
all game killed by his daughter’s husband.^ Very
similar rules are observed by the Australian Black-
fellows.

The Oraons of Chota Nagpur have an annual Great
Summer Hunt when the various villages send out their
quota of men. The game is equally divided between
all the villages which have joined the hunt. On their
return, ” when the hunters from each village approach
the limits of their village, they subdivide their division
of game into as many shares as there are families of
Oraons in the village. Even families whose members
^ Seligman, Veddas,*' 66.

PROPERTY. OWNERSHIP, ETC.

87

consist of only women and old men and children who
could not take part in the hunt are given their respective
shares." ‘ This seems a ceremonial recognition of
ancient rights. On the ordinary, less formal occasions
the game is divided among the members of the party
only. " The man who actually bagged the game gets
two shares, one for having killed the animal and another
as a villager and a member of the party." * Even here
there seems a relic of communal right. So, too, among
the Teu'a of North America, where the distribution is
limited to those who have taken part in the hunt.
" The Teu'a hunt is conducted on communistic prin-
ciples. In a band of hunters it is never the one who
killed a piece of large game who gets it ; he generally
receives but an insignificant share, or none at all. By
• common agreement it is distributed among the party, or
given whole to one who then is expected to cook it and
serve it as a banquet to the whole village." ®

On the other hand, the traditions of the Yakuts (like
Ttie Hottentots, a pastoral people) point to the con-
tinuity — at least, so long as they kept droves of horses —
of distribufion to all the kin on the slaughter of an
animal. The kin would be the only neighbours, and
they probably had an interest in the drove. It is
therefore surmised that the custom had its origin in
distribution to a body of persons who had a right to
share in the products of the drove.^ How far this applies
to the Hottentots is a question which we have no direct
means of determining, since they had passed the stage

1 Roy, ** Oraons,” 236.

Ibid., 157.

3 J. Jett6, J. R. A. l.r XXXIX, 483.

^Sumner, ibid., XXXI, 68.

88

PRIMITIVE LAW

of common ownership when Kolben, at the beginning
of the eighteenth century, wrote his elaborate account
of them. It may be observed, however, that, though
the ownership of herds was not then in common, the
cattle of a kraal still ran all together, and the poorest
inhabitant, who had only a single sheep, had the
privilege of turning it into the flock, where it was
tended and taken as much care of, though he was not
present, "as the sheep of the richest and most powerful ;
and that all the men of the kraal took turns in per-
forming the duties of herdsmen or shepherds. This
points to the joint ownership of the herds, and the
distribution may well have been only to persons who had
a right as joint-owners to participate.^

The articles of personal ownership — clothing,
weapons, ornaments, and implements — ^are so constantly .
associated with the person to whom they belong,
that they are hardly thought of apart from him. In
the processes of native thought they become identified
with him. Any use by others is likely to be dangero\f5“
to him, and magic to his detriment may be wrought
through their medium. Their ownership and use
are therefore jealously guarded. When he dies they
are buried with him, not necessarily as being useful to
him in that life after death in which most savages
believe, but as being his — ^things to which he has an
indefeasible claim, which are in fact thought of as
an extension of his personality. Thus the Yahgans
of Tierra del Fuego split the dead man's canoe in twain
and destroy all his belongings.* The Buandik of South

^ Kolben. i68.

“ Proc. Cong. Americanists, 1915,” 427. Mrs. James Smith,

Booandik Tribe," 9.

PROPERTY. OWNERSHIP, ETC.

89

Australia burn all that he owned, “ so that nothing
shall be left to revive the sorrow of the relatives,” and
the dead are thus utterly forgotten. In both these
cases the effects are destroyed to put an end to the
memory and the sorrow of the survivors. In a higher
degree of civilization the Melanesians of Florida, one
of the Solomon Islands, hang up the arms of the
deceased on his hut and leave them and the hut to fall
into decay. “ These things,” says Bishop Codrington,
” are not set up that they may in a ghostly manner
accompany their former owner ; they are set there for
a memorial of him as a great and valued man. . . .
With the same feeling they cut down the dead man's
fruit-trees as a mark of respect and affection, not with
any notion of these things serving him in the world of
ghosts; he ate of them, they say, when alive, he
will never eat again, and no one else shall have
them.”i

This is a practice common not only in Melanesia but
aTso in the East Indian Archipelago. In South America
it is widely spread. The Yaguas, to mention only one
example, destroy at a relative's death his whole property,
indeed, everything that he has touched. His domesti-
cated animals are killed and his plantation demolished.
If a child die, his father and mother put his weapons
and ornaments with him in the grave.^ Nor is the
practice of destroying the personal belongings of a
dead man confined to the southern hemisphere. It is
recorded of North American tribes and of Negro tribes.
It seems to have been by no means unknown to the
early Greeks. It is a funeral custom among the gipsies

' Codrington, 255 ; see also ibid., 263.

a Int.^Arch., XIII, Suppl. 57.

90

PRIMITIVE LAW

of this country to the present day ; ^ and relics are
perhaps found in the department of Ille et Vilaine,
Brittany, in the belief that everything that has belonged
to a dead man will speedily disappear : his clothes,
whatever may be done to preserve them, will be
promptly moth-eaten, his cattle will die by accident
or disease, if they are not sold to the butchers by those
who come after him.*

As, however, in the course of civilization property
is accumulated and its value as a means of acquiring
power is found out, new reasons are discovered for the
custom of destroying the property of the deceased or
burying it with him. It will be useful to him in the
spirit world, either to propitiate the rulers there or for
his own use. And, on the other hand, the desire of
the survivors to retain it for themselves in this world
grows stronger. This results in the reduction to a
minimum of the goods thus sacrificed, until they are
only the least valuable of his possessions — ^a mere sym-
bol of the intention. In another way, too, the symboP
ism is effected : the corpse is decked out with all the
valuables of the deceased, but they are carefully re-
moved before burial or cremation. The natives of the
Trobriand Islands to the east of New Guinea explain
the practice by saying that, as the ghost of the man goes
away to the region of the departed but the corpse
remains, so the ghosts of the jewels and axe-blades
with which the corpse had been adorned go away
though the objects themselves remain.® Finally, of
course, in the highest civilizations all pretence of

1 “ F. L.,» XXIV, 239, 348. 352.

^ Orain, ** F. L. L'llle et Vilaine,” II, 299.

® Malinowsky, ” J. R. A. I.,” XLVI, 359.

PROPERTY. OWNERSHIP, ETC. 91

5aelding up the property of the deceased is abandoned,
all attempts to identify his personality with his valuables
are forgone, and they remain to be divided according
to rule or the will of the defunct, lawfully expressed,
among his relatives.

Fruit-trees may seem strange objects to be reckoned
among a man's personal belongings. According to
our law they are inseparable from the land on which
they stand — they are part of the realty, as we say.
This, however, is not the law in Melanesia. There
they are treated as something separable : the land and
the trees upon it are independent objects of property.
The land may be owned by one man and the trees by
another ; though in Fiji the property in the trees ** is
rather in the fruit than in the tree, and is therefore not
considered to be in the land. You may take the fruit,
but you must not cut down the tree without the owner's
permission."^ This approximation to civilized law is
interesting. Where fruit-trees are distinguished from
tiiS soil in which they are rooted it is not surprising to
find the house treated in the same way. Among the
lowest savages the camp is so often changed, it is so
fugitive, if one may be allowed the expression, some-
times consisting of a few improvised wind-screens only,
that it is of no importance : it docs not exist long
enough, nor is it individual enough to be distinctive
of its owner. In such cases the whole camp is usually
abandoned : a not infrequent consequence of a death
in lower culture, probably arising from fear of the ghost
or of ceremonial pollution. This is a frequent cause
for the removal even of whole villages where the build-
ings are comparatively substantial. Elsewhere the
1 Codrington, 6x (citing Rev. L. Fison), 62, 65, 68.

92

PRIMITIVE LAW

corpse is buried or abandoned in the hut, and the hut
is sometimes destroyed. A relic of this is foimd among
the Cheremiss, a people of Finnish affinities in the south
of Russia. They no longer deposit the corpse in the
hut and leave it there in peace ; but, when it is brought
out in its coffin and placed upon the wagon which is
to convey it to the burial-ground with its belongings,
the family in bidding the deceased farewell pray him
not to take his house away with him, but to leave it
to his heirs. ^ It is impossible to discuss here fully the
destruction of property that takes place in primitive
communities on the occasion of a death. I only want
to point out that whatever other causes there may be
in the fear of the ghost, or of witchcraft, or ceremonial
pollution, there is one cause of very archaic origin which
gives weight and persistence to the others, namely, the
primitive extension of the idea of a man’s personality
to all the objects commonly associated with him in his
lifetime.

Land, however, is property of a totally different kiiffl.
It is impossible to identify it with the personality of any
individual. A community of roving hunters seeking
their food from game, or from wild fruits and seeds
(and this is a stage that science does not enable us to
get behind), rarely travels beyond the district with
which its members are familiar, unless driven by want
of supplies or some other special cause. That district
may be wide ; but, however wide, it has boundaries
hardly recognizable to us but well known to the com-
munity. Within those boundaries it is looked upon
by the community as its own territory. It resents the
intrusion, without permission, of members of any other
^ Smirnov, I, 137^

PROPERTY, OWNERSHIP, ETC 98

community upon it. At this stage, and for long after-
wards, no individual is regarded as the exclusive owner
of any part of it. This is the position of the Australian
natives. Our information does not enable us to say
how far, if at all, it is shared by the Bushmen of South
Africa in reference to the vast regions over which they
once wandered undisturbed. As little do we know of
the Pygmies of the Central African forests, who perhaps
have hardly arrived at the notion of claiming exclusive
rights in their habitat. But speaking of hunting tribes
generally, it seems that such exclusive rights are claimed
first for the whole tribe or a division of it, and that
from this the notion of ownership of land has been
gradually* developed with increasing civilization. The
starting-point, however, has been a claim, not so much
to the land itself, as of a right for the members of the
community, or group, to hunt unhindered over any
part of the territory, to take and appropriate the game
and the products of the soil found upon it, and to hold
assemblies and perform ceremonies at the accustomed
spots within its limits. There is no inheritance of land,
or of these rights, because the community is (to adapt
a legal term of much later date) a quasi-corporation
that never dies. With increase of numbers or growing
complexity of organization the land of the conununity,
or group, may be parcelled out, so as to allot to a clan
(in cases where the members of a clan dwell adjacently)
or a family, or other subdivision, a definite portion
over which they may exercise these rights exclusively,
as seems to be the case in some parts of Australia.^

Thus in a somewhat higher stage of civilization than

1 ** J. A. I.." VII. 291 ; XIII. 278 ; “ J. R. A. I.,” XLIII.

146. 147-

94

PRIMITIVE LAW

that of the Australian natives, where the population
was settled but agriculture was as yet undeveloped,
the Maori of New Zealand held land primarily by
tribal right ; but within this tribal right each free
warrior of the tribe had particular rights over some
portion. He could not part with the land, because it
was not his to give or sell ; but he had better rights to
certain portions than others of his tribe. He would
claim by having the bones of his father or grandfather
there, or if they once rested there ; or by the fact
of his navel-string having been cut there ; or by his
blood having been shed on it ; or by having been cursed
there ; or by having helped in the war party which took
the land ; or by his wife being owner by descent ; or
by having been invited by the owners to live there. ^
These very various, and to us strange, titles are derived
mainly from ancestor-worship or from taboo — ideas and
customs which formed the basis of Polynesian culture.
In the extreme north-cast of Asia the Yakuts, an
entirely pastoral people, knew nothing of private
property in lands, not even in the house. Communism
was the essence of their policy, which we have already
described. To maintain this communism in accordance
with the var5dng needs of their herds of horses the land
of a tribe needed to be re-allotted among the naslegs,
and that of the naslegs among the sibs from time to
time. This was done by ofi&cers specially appointed in
public assembly, and no individual property was
recognized, or any immunity of the property of nasleg
or sib from the law of redistribution.® In these circum-
stances all progress was debarred. An exclusively

1 E. Tregear, “ J. A. I.,” XIX, io6.

® “ J. A. I.," XXXI, 70, 74.

PROPERTY, OWNERSHIP, ETC. 95

pastoral and communistic policy leads to no advance
in civilization.

The advent of agriculture is the beginning of a
revolution, which ultimately establishes individual
property in land as in other things. It is no part of
our business to inquire into the origin of agriculture.
Whether introduced from abroad by invaders and
conquerors or by some less drastic form of culture-
contact, or developed from within, the result is the
same : it gives the native a new interest in the land,
a new use, which ensures a more tenacious hold of it
as the cultivation of the soil becomes more and more
the chief means of livelihood to the people.

Individual property in land, however, is of slow
growth. This may be illustrated from the Mundas and
Oraons, two aboriginal tribes of Chota-Nagpur in
Central India. Among the former the village com-
munity owns all the lands within the village area.
Separate fields, it is true, of the lands brought under
cultivation are cultivated by individual Mundas for
their own profit ; but the proprietary rights belong to
the corporate body of the Mimdari inhabitants of the
village, and the consent of all those joint owners must
be obtained for the transfer of any land. Among the
Oraons, on the other hand, the joint ownership of the
corporate body of the villagers extends only to the
jungle and other unoccupied lands ; or, rather, it did
so extend until comparatively recent times, for the
rights of the community have been distorted and over-
ridden by repeated conquests by foreign powers and
consequent claims to alien ownership. The result is
that among both the Mundas and Oraons the rights of
the village are subject to the claims of the paramount

96

PRIMITIVE LAW

landlord, who exercises his rights through an ofiicial
appointed by him from among the villagers themselves.
The rights of the Oraon village community, whatever
may be the case of those of the Mundas, over the un-
occupied lands have further dwindled to rights to jungle
trees and jungle produce, rights of pasturage and of
reclaiming waste lands, and can only be exercised under
certain restrictions. The cultivated lands, however,
arc vested, subject only, perhaps, to the claims of the
superior landlord (which may be little more than
nominal), in the family of the cultivator. This, again,
is a species of corporate ownership, resting on the rule
that the members of a family dwell together and work
together in the fields held by the head of the family.
When the head of a family dies the ownership
remains in the family, represented by the succeeding
head.^

The development of individual property in land is
seriously retarded by the nature of primitive agriculture.
The forest must be cleared and the land prepared, b^h
works involving the co-operation of many hands.
As systematic manuring is unknown, the land becomes
exhausted in a few seasons, and is abandoned and fresh
ground broken up. This often means the abandon-
ment of the entire settlement and removal to a different
site. Such a change causes little difficulty to com-
munities in an early stage of culture. Indeed it is
familiar. The dwellings are of perishable materials,
easily obtained, and liable to be frequently renewed,
or, from various causes other than exhaustion of the
neighbouring soil, such as a death, or an epidemic,

removed to another site. Thus in the basin of the
Upper Amazon, where the community resides in a
single large house, individual tribesmen may build
separate small dwellings for themselves and their
families in the bush, without relinquishing their right
to a comer in the common house. And they often
cultivate individual patches of plantation near their
individual dwellings, while the main plantation is
adjacent to the common house, and the greater part of
it is assigned to the chief, because not only has he greater
labour at command, but his produce is, partly at all
events, expended on the common wants. All these
plantations are abandoned every few years because
of the exhaustion of the soil, conflicts with other tribes,
or some other reason. In such circumstances nobody
can hold or retain separate property in land, except
while he is actually occupying or cultivating it . ^ Among
the Iroquois of North America, a mainly agricultural
society, the land was vested in the clan, the house was
vested in the family or division of the clan occupying
it. This was facilitated by the matrilineal practice
of the tribe, in accordance with which the husband
went to live in the house of the wife's family. “ Each
individual," says Morgan, "can improve and enclose
any portion of their common domain, and sell or retain
such improvements, in the same manner as with personal
property ; but they have no power to transfer the title
to the land to each other or to strangers." ® In short,
the land only belonged to an individual or a family so
long as it was actually occupied or cultivated by the
claimant.

' Whiffen, 41, 47, 102 sqq., i6i.

‘Morgan, ** League," I, 317 ; II, 118, 272.

7

98

PRIMITIVE LAW

The impulse to exclusive ownership (not necessarily
individual ownership) is often foimd in the difficulties to
be overcome in the cultivation of land. Thus, to select
only one illustration out of many that might be given,
the Ifugaos of Luzon, who cultivate rice on their
mountain-sides, have found it necessary to terrace and
irrigate extensively. On these steep mountains that
rise from sea-level to heights of six to eight thousand
feet — ^mountains as steep probably as any in the world
— ^there have been carved out, with wooden spades and
wooden crowbars, terraces that run like the crude but
picturesque ' stairsteps * of a race of giants, from the
bases almost to the summits. Some of these terrace-
walls are fifty feet high. More than half are walled
with stone. Water to flood these terraces is retained
by a little rim of earth at the outer margin. The soil
is turned with a wooden spade in preparation for
planting. No mountain is too steep to be terraced, if
it afford an unfailing supply of water for irrigation." ^
Accordingly,- the subjects of so much strenuous labour
are permanently owned cither by a family or an indi-
vidual on its behalf ; and the community seems to have
no claim upon them. " Family properties consist of
rice-lands, forest-lands, and heirlooms. The Ifugao
attitude is that lands and articles of value that have
been handed down from generation to generation
cannot be the property of any individual. Present
holders possess only a transient and fleeting possession,
or, better, occupation, insignificant in duration in
comparison with the decades, and perhaps centuries,
that have usually elapsed since the field or heirloom
came into the possession of the family. Their possession
^ Barton, “ Univ. Cal. Pub.,’* XV, 9.

PROPERTY. OWNERSHIP, ETC. 99

is more of the nature of a trust than an absolute owner-
ship— a holding in trust for future generations.” Yet
family property may in case of necessity be sold after
consultation with the kin, by means of complex cere-
monies in which the near kin of both buyer and seller
take part. Side by side with this family property there
are things which are individual property. In addition
to objects of personal use, such as those discussed on a
previous page, houses, valuable trees, and sweet-
potato fields, are so reckoned. ” Dwellings are movable
property in Ifugao. A man, with the aid of his kins-
men can, and frequently docs, take a house to pieces,
move it to a different site, and set it up again before
sunset. The plot on which a house stands, has no
value,” and is presumably abandoned. Coco-nut
trees, coffee-trees and areca palms, are individual
property, and can be transferred from person to person
apart from the land on which they stand. Sweet-
potato fields are clearings on the mountain-sides about
the -village. But their value is only passing ; they
quickly lose their fertility, and arc abandoned in from
two to six years. After abandonment the field slowly
regains its fertility. Then the first person who begins
clearing it again becomes its temporary possessor,
until he in his turn abandons it. Such fields are seldom
the subject of sales, though the crop, with temporary
possession for the purpose of ingathering, may be dis-
posed of. Abandonment of rice-land and forest-land,
on the other hand, does not mean relinquishment of
ownership. The owner may recover possession at any
time, subject to his paying anyone who has taken
possession in the meantime for his expenditure of labour
upon a rice-field, or if he has had possession for the

100

PRIMITIVE LAW

same number of years that it lay abandoned, without
any payment. Forest-lands divested of their wood
by the owner may be planted with sweet-potatoes by
anyone. The owner must inform him at once
if he object, otherwise he will, before obtaining
possession again, be required to pay for the
labour or allow the harvesting of one crop from the
land.^

Now the land defined as family property requires
much labour to reduce and keep it under cultivation,
and to fell and remove the timber ; and the careful and
prolonged co-operation of many hands is needed. This
is given by the kinsmen who are to share in the profits
.of their toil. The greater the labour, the more tena-
ciously they will hold to the property, and the less
willingly they will see it pass by way of redistribution
into the possession of others. It is not surprising,
therefore, that exclusive ownership of the family has
developed. The objects spoken of by our authority
as " heirlooms ” are likewise valuable. They •are
personal ornaments of gold, agates, blood-stones and
glass beads, gongs, and rice-wine jars. If not acquired
by the labour and contributions of, they are at least
enjoyed by, all the family. " These articles," we are
told, " are used fully as much by the owner's kin as by
the owner himself ; for they wear the beads and orna-
ments, play the gongs in feasts, and brew rice-wines in
the jars." Heirlooms, of course, these things are not ;
they are family property, the enjoyment of which is
shared by all the kin. In this they differ from articles
of individual use and identified with individuals, and
they are assimilated with the land on which the family
1 Barton, ** Univ. Cal. Pub./* XV, 39-44.

PROPERTY, OWNERSHIP, ETC. 101

labour has been bestowed, and the fruits of which are
employed for the maintenance and prosperity of the
family under the direction of the holder for the time
being. ^

It may be laid down that the transition from the
common ownership of land by a whole community
(tribe or clan) to individual ownership has generally
been made by way of family ownership, and is based
on its reduction under cultivation. Thus in Fiji each
village community has its own lands, which are of three
kinds : the yavu or town-lot, the gele or arable land,
and the veikan or forest. The forest-lands are common
to all the real or imputed descendants of the original
settlers of the village, all of whom have the right of
felling timber for building and other purposes. The
town-lots are divided among these descendants, and
subdivided until each “ family or household has its
own lot, upon which the family dwelling is erected.
Between the town-lot and the arable land there is a
close connexion, and to establish the ownership of the
one appears to go far to establishing the ownership
of the other. The arable land is not always, like
the town-lots, divided among the various households.
Sometimes it is, but sometimes it is not ; and in this
case there appears to be joint use by all the descendants
of the original settlers.* “ Each generation has the
usufruct only, and cannot alienate the land." ® In
other parts of Melanesia there is no appropriation to
a village of the bush-land surrounding it. This land
is simply waste which anyone is at liberty to reclaim,

^ Ihid., 40.

L. Fison. ** J. A. I./* X, 336 sqq.

^Codrington, 60 n.

102

PRIMITIVE LAW

and it thereupon becomes his own. The town-lands,
and the cultivated lands are held by individuals, not,
however, for their own benefit. The individual holds
possession for his lifetime only, and uses what he has
inherited as part of the whole property that belongs
to his family. There is thus no individual property
in land, except what a man has personally reclaimed
from the forest. He may plant fruit-trees on another's
land with the latter's acquiescence, and then those
trees and their fruits will be his personal belonging as
much as pigs which he has bought or reared, or any
objects of personal use or ornament. "The chiefs
have nowhere more property in the land, or more rights
over it than other men," whatever they may have
claimed in dealings with Europeans, and whatever
power they may tyranically have assumed in dealing
with their own tribesmen. The ownership of land thus
depends upon its reduction under cultivation either by
a man or his ancestors. A man who has himself re-
claimed land from the waste may apparently do what he
likes with it, and it descends to his own children. The
people are in a late stage of mother-right, the family
is continued through women only, and the property
of the ancestors descends through women, so that the
ancestral or family property held by a man does not go
after his death to his children, but to his sister's children,
or to his nearest of kin through his mother. Whether
the property claimed by a man as owner because he
has brought it under cultivation will ultimately descend
in the same way, when the origin of the claim is forgotten,
depends on the continued existence and strength of
the matrilineal family. The small beginnings of the
agnatic family have been accelerated in growth by the

PROPERTY. OWNERSHIP, ETC. 108

advent of the White Man ; and the holder of family
property has even now by native law a right to arrange
before his death, that his sons may succeed to a part
of it. Thus a way is opened for the transmutation of
family to individual ownership.^

In Melanesia and Polynesia the chiefs are rather a
class than individual monarchs. Where the chieftain-
ship has become a personal dignity the ownership of
the lands of the tribe no longer rests directly in the
tribe, but in the chief as representing the tribe. Speak-
ing of the Ba-Ronga, a Bantu people of south-east
Africa, M. Junod says : " By law the soil belongs to
the chief, but only that through him it may become
general property. No one can buy land. It is gratui-
tously assigned to any and all who wish to settle in the
country. The mere fact of making submission to the
chiefs entitles the native to as much land as may be
necessary for his subsistence.'* The actual allotment
is performed by the headmen of the villages, who
obtain the grant of considerable tracts of land which
they apportion amongst those under their jurisdiction.”
They are glad to do this, because the grantee of the
land ” adds considerably to its value by cultivating
an otherwise useless bush,” and increases the head-
man's strength by peopling his tract of country and by
making certain payments in labour on the fields the
latter retains for his own use.^ The Ba-Ronga have
advanced to descent through the father, and a long way
towards individual ownership. The land once granted

to a tribesman or settler, it remains his and descends
to his sons, so long as he and they occupy it. If he
quit, he abandons it ; and it then reverts to the common
stock of the chief or headman by whom it was granted.
The wild fruits, if any, on undivided land (there is no
such thing as cultivated fruit) are conmion property;
anyone who likes can gather them. The Bantu not
only cultivate the ground ; they are also a pastoral
people. The grazing lands are not divided ; they are
for common use. This system of land tenure is general
throughout the area in South Africa inhabited by the
Bantu. ^

Farther north, however, the Bangala (also Bantu)
of the Upper Congo, a cannibal tribe who dwell in
towns or villages, each town or village being independent
and consisting of a number of families, but without a
chief recognized by all, have quite a different land-law.
The land surrounding the town belongs to the inhabi-
tants of the town. Within its boundary the people
of the town are free to settle and cultivate any land
not already occupied ; and on the death of the first
cultivator it would be inherited by his children. Be-
tween the land of a town and that of the next, a space
of forest-land is neutral ground free to the people of
both towns to hunt, cut timber, and for similar purposes.
In the town the houses appear to belong to individuals.
They only take a day to build, and are easily removed.
When the owner dies he is buried in the house, and it
and any other houses in the row with it (as those built
for his wives adjacent to his own) are abandoned and

Thus we have here individual property, the title to
which depends on priority of occupation ; and ap-
parently the native, whose sense of time is rudimentary,
does not recognize any limit to his right to retrieve
possession of land which he has once abandoned, or
of which he has been deprived. Statutes of limitation
are a weakness of a much more sophisticated stage of
civilization.

The Bantu in Uganda erected a military empire,
and reached the highest civilization known to any of
their race before the coming of the White Man. Their
policy was based on the feudal system. The whole
of the land belonged to the king. It was held of him
by the various chiefs and dignitaries, and they granted
it out in portions on condition of the grantees “ doing
work for them, especially building work, and rendering
military service.” No sale of land was possible. The
clans into which the population was divided indeed
possessed their freehold burial-grounds, but they could
not sell them to any outsider ; nor could a stranger
be buried anywhere in the country without the permis-
sion of the king. The men did not themselves cultivate
the land they thus held. This was done by the women
of the family while the men were occupied in working
for the chiefs and the king, or in making bark-cloth in
their leisure from this labour. It seems (though I
have not found this expressly stated) that the land
granted to anyone could be taken back at any time by
the king or chief of whom it was held, either at his own
caprice or by way of forfeiture for nonfulfilment of
' “ J. R. A. I.,” XXXIX, 109. 424, 426, 429.

106

PRIMITIVE LAW

the conditions of holding or for crime.' Such a system
is the product of conquest and settlement by invaders
who have established themselves on the spot as a ruling
class : in this case probably a Hamitic people. In
Madagascar the rule of the Hovas, originating also in
conquest, has been productive of an even more drastic
result. The Hova sovereigns reduced their subjects
to the condition of slaves : no one could do or have
anything, save in accordance with the sovereign's will.
All land, whether cultivated or uncultivated, belonged
to the sovereign, who could turn out a tenant at a
moment's notice and without any compensation for
improvements or buildings. On the other hand, the
tenant could do nothing with his land, except to build
or plant, until he had first applied for and received
express permission from the sovereign for the purpose ;
and if the tenant desired to give up, exchange, or
apparently to sell his holding, or to remove elsewhere,
the sovereign might refuse permission. There is no
military tenure ; but every able-bodied subject* not
nominally a slave, or not incapacitated by disease or
inferiority, was obliged to serve in the army, and every
tenant was liable to pay annually the first-fruits of all
crops, as well as a certain quantity of rice in the husk,
together with manual labour, such as preparing the
sovereign's rice-fields (rice being the chief crop), making
roads or embankments, erecting public buildings or
other public works.*

The development of a feudal system is only possible
where conquest is accompanied by military settfement
in the midst of a subject population. In such an event

' Roscoe, '* Baganda," 268.

G. W. Parker, J. A. I.,” XII, 277.

PROPERTY. OWNERSHIP, ETC. 107

the leader of the successful invasion develops into a
hereditary king, his chiefs of bands receive grants in
severalty of tracts of land and become barons and
lords, the victorious freemen receive smaller portions
while the conquered people sink into serfs on land
formerly their own. Where the conquest does not
assume this intensive form, the victor is often satisfied
to exact a tribute only, leaving the vanquished in
actual possession to work out undisturbed in the normal
course their problems of land-ownership and civiliza-
tion, from common ownership by the community,
through the narrower circle of the clan or family, to
individual ownership. This course is found actually
running in India and among the Slavs of Russia and
the Balkan peninsula. Historical records and relics
in custom and tradition have preserved its memory, or
something more than its memory, all over Europe.
The claim of the family to share in the benefits of
ownership is based on the double bond of blood and of
co-operation, all the more effectively rendered since
the members, where the family ownership is effective,
usually dwell together under a common head. When
from any cause they separate, the family property is
divided ; and a break-up of the family ultimately
leads to ownership in severalty.

The existence of the joint family is directly but little
affected by the change of the reckoning of descent from
the mother's to the father's side. Where mother-right
is in full force, as among the Iroquois or among the
Menang Kabau Malays of the Padang Highlands of
Sumatra, the family continues to live together and to
own and work the family property. When father-
right has taken its place the joint family often continues,

108

PRIMITIVE LAW

as in India and Russia, under the headship of the
father or, in the event of his death, of brothers succeeding
in a definite order ; and the family property vests in
the head for the time being for the benefit of the family.
The break-up of the family is very slow and gradual.
The feeling of solidarity dominates the clan, and with
the growth of families within the clan it dominates the
family with at least equal strength. This feeling of
family solidarity may even subsist after a joint family
has ceased to dwell together. Its members may be
driven apart by the narrowness of house-room, family
quarrels, or other circumstances ; but they may still
live in one another’s neighbourhood, and they may
still put the fruits of their labour into a common stock.
In such a case they will not abandon their claim to share
in the good things of the family, while, on the other
hand, they will continue liable for the crimes and
misdeeds of one another, and will be mixed up in the
quarrels and lawsuits of the family. This claim and
this liability are equal : the one is the measure of the
other. The loosing of the fsimily tie thus expressed
cannot be done all at once ; it will take generations —
centuries if the process be undisturbed, unaccclerated.
Conquest, enterprise, individual industry, foreign con-
tact, every incident in the process of civilization loosens
it more and more, and tends to set up individualism
in its place, until at last individual ownership with its
correlative individual responsibility is substituted for
family ownership and family liability in the whole
circle of rights and duties.

Where this revolution is complete the family as a
quasi-corporation no longer exists : inheritance has
taken its place. We have already touched on the

PROPERTY. OWNERSHIP, ETC. 109

process of appropriation by the survivors in dealing
with articles of personal use. This appropriation
naturally occurs earlier with respect to such articles
than to the more permanent and less easily divisible
land. Even when excuses have been found for not
destroying them at the owner's death but keeping
them, however, they frequently remain undivided for
a certain period and must be purified before being
appropriated by the survivors. Thus, the Suk of the
East African Protectorate keep the dead man's orna-
ments and head-dress for a month after his death, and
then give them to the official grave-digger of the com-
munity, or divide them among the relatives of the
deceased. But before so doing the articles in question
are purified from their late owner's presence by lustra-
tions of milk.^ The Ntlakapamux, or Thompson River
Indians, of British Columbia burn the lodge in which
an adult has died, together with most of his household
utensils and the bed on which he has died. Some of
his property is placed in or near the grave, and the rest
is divided among his relatives. Articles of clothing
are also given to be divided among outsiders (not
relatives) ; but these before wearing them are careful
to wash them, or put them for some time in running
water, and afterwards to hang them out for several
days. His traps and snares are removed to a distance
and hung up in a tree for a long time before being used.
His bow and arrows, long leggings, and moccasins no
one dares to touch.*

Purification, however, cannot apply to land. When
individual property in land is established it may be

1 K. R. Dundas, J. R. A. I.." XL, 59. 60.

Tcit, " Jesup Exped.,’* I, 331, 332.

110

PRIMITIVE LAW

subject to the very common rule that a certain time
must elapse before it is appropriated. It is then
frequently dealt with by means of an elaborate ceremony.
The order of succession remains for long undetermined.
Sometimes the land under father-right falls to the
eldest son. He would have been the head and admini-
strator of the family before individual property was
established ; and probably his inheritance is burdened
by the maintenance of the women of the family, so
long as these are unmarried. Often the inheritance
is decided in family conclave, as among the Jekris of
West Africa, where, “ generally speaking, not the
eldest son, but the son adjudged to have most sense
(i,e, the fittest to succeed) is made heir.'* It is very
common, however, that the dying man expresses his
wislies as to the disposal of his property — ^wishes which
are in most cases observed.^ Here we have the germ
of the right of testamentary disposition. The Angami
of the Naga Hills in the north-east of India possess
separate property. Daughters do not, except in certain
villages, inherit ; but a property may be left to them
by word of mouth. Where they do receive a share
of the paternal property, it is not clear from our informa-
tion whether they receive it on marriage or at the
father's death. The sons as they marry receive a share
of their father's land, leaving the paternal roof and
building houses of their own. In practice the youngest
son nearly always inherits his father's house. If at
the father's death there be more than one son unmarried,
the property is divided between them in equal shares.
If a man die leaving no sons the property is as a rule
divided among his nearest male relatives. On the
J. A. T./' XXVIII, Ii8.

PROPERTY, OWNERSHIP, ETC. Ill

death of a married woman possessed of landed property
in her own right, but without children, the rule is the
same, unless the property be sold to pay her funeral
expenses.^ The practice ‘ of portioning the children
as they go out into the world usually results in the
youngest being left at home, and consequently inheri-
ting what remains of the paternal estate. It is implied
in the parable of the Prodigal Son, and it has in our
own country left as a relic the local custom of Borough
English (as at Nottingham, Gloucester, and other
places), whereby the youngest son of an intestate
inherits, to the exclusion of his elder brothers, the
real estate situate within the limits to which the custom
applies.

It would lead us beyond our space to pursue the
various rules of inheritance of landed properly. They
appear even under matrilineal reckoning of descent,
where the sisters or the sisters* children ordinarily
succeed to the exclusion of the children of the deceased.
But •they attain their greatest diversity after the
establishment of the patrilineal reckoning ; and they
probably follow, as nearly as may be, the lines along
which the headship of the family as a quasi-corporation
has run, or the lines of division during the period of
the gradual break-up of the family, leading to the
victory of individualism.

The change in the descent of property from the
mother's side to that of the father has often come
through slavery. Slavery is an institution which does
not arise until a considerable advance is made on
archaic savagery. Prisoners are rarely taken in savage
warfare. When they are taken, as among many
1 Ibid., XXVII, 29.

112

PRIMITIVE LAW

tribes in North America, it is only for the purpose of
torturing them to death to gratify the revengful feelings
of their captives, or to be adopted into the tribe in
place of those who have been killed in the fight, or,
lastly, as in Mexico, to be eaten. But as property
accumulates, their value as slaves is discovered. In
Africa not only prisoners taken in war are enslaved.
Men who cannot pay their debts, or their fines, give
up to their creditors their children and wives, or in the
last result resign themselves as pawns for their liabilities.
Though redeemable, this condition frequently results
in permanent servitude. Men who get., women as
pawns, or as slaves, reduce them to concubinage and
beget children upon them. These children, though
still slaves, may be regarded by their fathers with
parental fondness. In such a state of society slavery
is not an insupportable condition. Slaves, whether
the children of their owners or not, are generally treated
as members of the family. It is true they may be
liable to be put to death by a callous master for fajults,
or on his death to accompany him into the other world ;
yet apart from these risks they may ultimately succeed
to their owner's property and position. If the owner
be their father, he has some care for their future.
Under mother-right his own children, by free women,
will succeed to the property and position of their
mother's brothers. But his slaves and the children of
his slaves, will have no such resource. For the latter,
therefore, if he have any affection for them, he makes
provision in his lifetime, or by the expression of his
dying will. Where slavery is general this leads to a
custom which, becoming prevalent, may result in chang-
ing the line of descent. Where a man dies without

PROPERTY. OWNERSHIP, ETC. 118

children, h trusted and confidential slave whose relations
with his owner have been much like those of a favourite
child, easily succeeds. Among the Fantis of West
Africa, whose descent follows the mother, the chief
slave inherits, even where there are children by free
women ; for the children belong to their mothers'
family and succeed to them and their kin, and not to
the fathers.^

Under polygyny, in which numerous savage peoples
live, the widows who are not put to death (as some at
all events of them may be) to accompany their deceased
lord, form an important part of the heritage. In such an
event they are distributed among the heirs or the next
of kin. From this distribution, the sons are by no
means excluded, thought a son as a rule does not get
his own mother in the quality of wife. If she be aged,
she may as his mother enter his household and be
supported by him. If she be comparatively young
she may become wife to a son by another woman.
It is very common that the widows fall to the deceased
man's brothers. This custom (called the levirate) is
limited by the growth of civilization to cases where
the husband has died childless; and, as among the
Hindus and the Israelites, its object is to raise up seed
to the deceased, to secure the family property and (at
least among the Hindus) to ensure the performance of
its correlative duty, the maintenance of the ancestral
rites. The eldest son of such a connexion is accordingly
regarded as the son of the deceased, and among the
later laws of the Hindus the connexion was supposed
to cease when its object had been thus attained. There
are even, in our eyes, more extraordinary methods for
^ Post, ** Afr. Jurisp.," II, 6, citing Bowdich.

8

114

PRIMITIVE LAW

the same object pursued among several Asiatic and
African peoples. But the origin of the levirate is
wider. It is founded in the help given by the kindred
(clan or family) to acquire, by purchase or force, a bride
for one of their members. Thus the Bantu of South
Africa hold that the most honourable kind of marriage
is by pa5nnent of a bride-price (called lobola). Without
this a man has no claim to exclusive possession of his
bride, or to the children that may be born of her. The
bride-price received by a father for his daughter is not
strictly speaking purchase-money. Its payment does
not render her a slave. Rather it operates as a guarantee
of her good treatment. For, if unable to agree with
her husband, she run away, he will lose both her and
the bride-price, unless he can satisfy her kin that the
fault is upon her, when they will either compel her to
return, or restore the bride-price. When the bride-
groom pays the bride-price it is divided among the kin
of the bride, the principal share going to her father ;
daughters are therefore desired as a source of wealth.
Much of this wealth, however, is spent in paying the
bride-price of wives for sons, or of additional wives
for their father. To these bride-prices the members
of the kin, who receive shares of the bride-price of
daughters, contribute ; and it is a reason frequently
alleged in support of the claim to the widows that the
claimant, or those from whom he claims, have paid
a share of their bride-price. In an early stage of
culture, in fact, it would seem that the bride is either
purchased or captured by the kin conjointly for one of
their number, and that thus they have claims upon her,
which arise on the death of her husband, if not sometimes
before. But this is a question still under discussion.

PROPERTY. OWNERSHIP. ETC. 115

Finally, a word may be said on the subject of the
transfer of property. An early form of transfer is by
means of barter, or the exchange of goods directly,
without any medium of exchange or currency. Where
commercial transactions become common (and many
barbarous peoples speedily acquire commercial habits)
some sort of currency is necessary. Various materials
have been used for this purpose by more or less civilized
peoples. Such articles and materials as cattle, bars
of metal, pieces of leather, minted coins, and ultimately
paper spring to the mind, and need not be here dis-
cussed. Among the less civilized, the objects most
widely employed are cowry shells. They are very
extensively used in Africa ; and in the French posses-
sions in West Africa, the official rate of exchange for the
five- franc piece, in which the native tax is paid, was
before the recent great war, 5,000 cowries, though the
ordinary rate was as low as 4,000 or even 3,500. In
ancient times in Japan maga-tama, or curved jewels,
of chalcedony, jasper, nephrite, chrysoprasc, cornelian,
and similar stones seem to have been used ; nor is it
quite clear that their use was extinct in the Liu-Kiu
Islands prior to the Japanese occupation about twenty
years ago.i Usually objects used for currency have
some intrinsic value, such as mats, sticks of tobacco,
and other commercial articles. But there are exceptions
to this rule. The only value of cowries, of wampum,
dentalium, and other shells used on the American
continent, or of mussel-shells used in Melanesia, is that
conferred upon them by the labour of gathering and
transporting them and, in the case of wampum, of
grinding and shaping the beads into which they were
Figured by Aston, " Nihongi/' I, 38.

116

PRIMITIVE LAW

formed. Perhaps the most extraordinary currency is
that in use on the Islands of Yap, or Uap, aji outlier
of the Caroline Archipelago. It consists of disks of
limestone or arragonik, quarried in Babelthuap, one of
the Pellew Islands, four hundred miles away. These
disks vary in size from one foot to twelve feet in dia-
meter, and are each perforated with a central hole,
through which a pole is inserted strong enough to
facilitate the transportation. This cumbrous money
has no value apart from the show of riches it provides,
which is rendered the more easy in inverse ratio to the
difficulty of stealing it.^

^ W. H. Furness, “ Island of Stone Money,** 93 ; Christian,

Caroline Islands,** 236, 255, 256, 291.

CHAPTER V

INTERNATIONAL RELATIONS

T he attitude of a savage tribe towards aliens,
whether as a body or individually, is very
simple : it is one of suspicion and hostility.
Such is the attitude of the lower animals, due doubtless
to the countless dangers of forest and mountain and
prairie. In man it may be atavistic, looking back to
the aeons of pre-human existence, and fortified by all
too frequent human experience of treachery and
violence. This attitude is reported all over the world.
What Dobrizoffer says of the Abipones is, with few
exceptions, universally true : ** Every stranger what-
soever, Indian, Spaniard, or Portuguese, they suspect
of hostile intentions and receive in arms, believing every
other race their enemies and designers on their free-
dom.*' When the author proposed to take shelter with
an old friendly chief : ** You would keep away from my "
dwelling,'* answered the old man, “if you knew the
peril that awaits you there. My countrymen are of an
evil disposition ; they want to slay, slay, slay all
strangers.*' ^ Nor is it only that hostile intentions — ^at
least in the sense of physical violence — ^are feared : all
manner of evil magic is suspected. A stranger who
' Dobrizofier, I, 63, 67. Cf. Whiffen, 256, 257.

117

118

PRIMITIVE LAW

comes to a community in Morocco is held to be a sorcerer,
and is put to death. If he be fortunate enough to
escape this fate the hostile natives seek to conciliate him
and make use of him as a physician.^

A stranger, moreover, as such, is under a taboo and
cannot without preparation, or perhaps at all, be
admitted into intimacy and still less to take part, even
as a silent witness only, in religious rites. For he
is endowed with a potentiality, an orenda in the
Iroquoian phrase, which is unknown, and which may
be of evil significance. Among the Bantu of Loango,
his dead body will hardly be given burial, because, as
Dr. Pechuel-Loesche remarks, admitting the body will
be admitting the soul, and who knows what the conse-
quence of that would be ? ® The expulsion of living
strangers from solenrn rites is a common incident in
savage and barbarous tribes. In ancient Rome at
certain sacrifices strangers were, with captives and
women, required to depart ; ® and in the surviving
ritual of the Umbrian city of Iguvium (now Gubbio)
the magistrate is directed in the ordinance for the
lustratio populi to expel all members of certain neigh-
bouring communities by a thrice-repeated proclama-
tion.* Such was, and still is in the lower culture, the
hatred, distrust and fear of strangers — feeling by no
means absent from the highest civilization, and one
which the recent unhappy war has done not a little to
intensify.

But this attitude to strangers in general is by no

^ Doutt^. 49. Cf. Weeks, Congo Cannibals," 176.

Pechuel-Loesche, 210.

Fowler, " Religious Exper." 30.

Bower, 133, quoting the rituaL

INTERNATIONAL RELATIONS 119

means incompatible with kind and generous hospitality
to individuals. “ Perhaps no people," Morgan says,
"ever carried this principle to the same degree of
universality as did the Iroquois. Their houses were
not only open to each other at all hours of the day and
of the night, but also to the wayfarer and the stranger."
The first duty on welcoming a guest was to offer him
food ; and the hospitality they showed to strangers of
their own race they offered equally to the intrusive
European without fee or reward. " It made no dif-
ference at what hour of the day, or how numerous the
calls, this courtesy was extended to every comer, and
was the first act of attention bestowed. This custom
was universal, in fact one of the laws of their social
system ; and a neglect on the part of the wife [for it
was she on whom the duty fell] to observe it, was
regarded both as a breach of hospitality and as a personal
affront. ... A stranger would be thus entertained
without charge as long as he was pleased to remain." ^
Thv§ praise that Morgan gives to the Iroquois is equally
deserved by peoples in every quarter of the globe,
though not by all. The Baganda "welcomed strangers
and showed hospitality to guests ; every visitor was
given a female goat at least when he arrived — ^it was
not polite to give a male animal — ^and they never looked
for nor expected a return present," *

Notwithstanding this, it is necessary usually for the
guests ceremonially to purge themselves of the taboo
attaching to them as strangers. This is done in a
variety of ways. It may be as simple as that of the
Somali, who establish a sort of temporary kinship with

‘ Morgan, ** League," I, 318, 319.

^ Roscoe, " Baganda," 6.

120

PRIMITIVE LAW

a guest by means of the host's spitting in his right hand
and rubbing the saliva on the guest's forehead. Once
thus received into the conununity, the guest is formally
regarded as a child of the tribe. He is hospitably
entertained ; and when he departs he receives, especially
among the allied tribe of the Oromd, a really valuable
gift.^ On the other hand, the rite may be as formidable
as that of the Eskimos, among whom a guest previously
unknown is met by his host, who strikes him a violent
blow on the side of the face. The guest reciprocates
and the contest is continued by alternate blows until
one of the men confesses himself vanquished. The
stranger is then welcomed with a feast.* A similar
custom is described in Chukchi tales, and seems to have
been followed among the Chukchi.®

It may be added that in a certain stage of culture
there is an alternative possibility to the hostile magical
powers of a stranger. He may be a supernatural being,
in which case his errand is probably a friendly one. He
is then repulsed or ill-treated at the peril of the hosf, of
which examples are found in the traditions of many
nations. On the contrary, the entertainment of such
a stranger may result in the conferment of great
benefits.*

When a stranger has once been accepted as a guest
and his taboo taken off, there arise between him and his
host the rights and duties of mutual loyalty and pro-
tection. These rights and duties might be illustrated

^ Paulitschke, I, 246.

Boas. *' R. B. E./* VI. 609.

** Jesup Exped.,” VII. 582. Cf. van Gennep. ** Rites de

Passage/* 38-40.

Hartland. ** Ritual and Belief.'* 285 ; '* Encyc. Bibl.,** IV,

4670 ; Westermarck, “ Moral Ideas," I, 583.

INTERNATIONAL RELATIONS 121

from many quarters ; but they stand out prominently
in the laws of the Arabs and have been in a measure
familiar to every one from childhood in the pages of
the Bible and the Arabian Nights/' Penetration
into the Arab tent assures to the guest protection against
an enemy seeking to wrong him or inflict any harm.
Commensality of host and guest is a pledge of fidelity
between them, assuring each of them of the just and
friendly dealing of the other. The duties and liabilities
involved are incumbent upon thi^m both, not merely
so long as the guest is witliin the tent, but afterwards
until he has presumably digested the bread and salt of
the host, which he has eaten ; and the protection they
confer contributes not a little, we are told, to give
security to the deserts in which the Arabs wander.
Breach of these duties by cither party involves a
disgrace which cannot be wiped out, if not a crime. ^
So much for the mutual treatment and responsibilities
of individuals. The relations of tribes and peoples to
one another are often of the most formal and courteous
charaicter, as in civilized diplomacy. In Australia
messengers, duly accredited, arc sent from one tribe
to another for a variety of purposes — to call meetings
for deliberation on matters of common interest, to make
important announcements, as of a death, to summon
assemblies for initiation of the youth, and as ambas-
sadors to settle outstanding questions in dispute. They
carry sticks or other emblems of their office ; and their
persons are generally sacred. But for better security
messengers are preferably chosen who have relatives
or friends in the tribe to which they are accredited.
With this object also women are often the intermediaries
^ Janssen, 82-93.

PRIMITIVE LAW

• ^

122

between hostile tribes ; and it is understood that if
they are successful in their mission there will be a time
of licence between them and the men of the tribe to which
they are accredited.^

A similar formality and courtesy characterized
the North American tribes, particularly the Iroquois
about whose proceedings we are well informed. Their
famous league consisted of a number of independent
nations whose autonomy was jealously preserved. By
the sachems, or chiefs, and to them, envoys to and from
foreign nations were sent. If it were determined
that the proposition they desired to submit was of
sufficient importance to authorize a council-meeting of
the league, runners, accredited with belts of wampum,
were sent out to the various nations of the league
to summon them to meet on a certain day at a certain
place to consider it. The foreign envoy, or the repre-
sentative of a nation belonging to the league, who
desired to submit a proposal to the league, would then
be heard with patience and close attention, the question
would be fully debated, and a reply given.*

All peoples in the lower culture are not so reasonable.
Many treat foreigners and opponents with disdain and
tolerate no intercourse with them. They hurry to
war on the slightest pretence — often without any sort
of provocation : hostility to strangers is dominant, the
passion for war is supreme. In which case, as we have
found out even among nations pretending to civiliza-
tion, civility goes by the board ; there is only left the
mailed fist and the rattling sword.

Nor is this overbearing conduct by any means a

^ Howitt, " S. E. Australia," 678-691.

Morgan, " League," I, 104-106.

INTERNATIONAL RELATIONS 128

special characteristic of the lowest peoples. The
Toradjas of Mid-Celebes are by no means on the lowest
step of culture, and they are a most quarrelsome people.
They are said to live more in war than in peace. They
were nominally subject to different neighbouring
potentates, yet they troubled little about them beyond
paying certain tribute and going to their assistance
in war — the latter an obligation they very readily
honoured. Subject to this, every village was prac-
tically independent ; and if the inhabitants were not
exactly at variance with one related tribe, it was easy
to find another with which they were in continual
hostility. Anything might lead to war. The Toradja
is as sensitive about his honour as Sir Lucius OTrigger.
Until the island came effectively under the Dutch
Government, in a dispute one word led to another and
war was declared before the parties realized their
position. Undoubtedly much, though not all, depended
on the coolness of the chiefs who were involved. A
circuihspect and calm chieftain would make all the
difference to the issue of a quarrel. Without the
soothing influence of such a one there was constant
war. Disputes about a debt or a fine, or a refusal of,
or delay in, payment, or a quarrel about a wine-palm
would be quite suf&cient. And where these trivial
matters gave occasion to war, graver causes, even
deliberate provocations, were not wanting. A man
of a friendly community would be slain under the
excuse that he was mistaken for an enemy ; or one of
two antagonists might compel a neutral to join in and
take a side under threat of war, or, in the alternative,
if the real enemy were at a distance, might attack
an unconcerned and unoffending community near at

124 ^ PRIMITIVE LAW

hand, under pretence that it had given assistance to the
real enemy, so that it would be possible to wage war
without going far from home.^ In Australia, war was
usually made between tribes or one section of a tribe
with another tribe or section of a tribe over their women,
or for an alleged murder by witchcraft. Since death
was never believed to be from natural causes, however
old or infirm a man might be, or from accident, but
was always reputed to be by witchcraft of some other
tribe, such deaths almost invariably led to attempted
revenge and were a most fruitful cause of war. War
was never made by the Australian natives for territory
or for the subjugation of one tribe by another. In New
Zealand, as we have seen, and also in Melanesia, it was
made to obtain the bodies of enemies for a cannibal
feast, but also to exedt the power and glory of the chiefs
who plotted and led the attack against unsuspecting
foes. This reason is enough among military peoples
in the lower culture, though in Europe it must be
disguised under the pretext of defending an aggression
from without, or some other equally plausible excuse.
The Vikings did not need even this for their raids in
the old days : they went frankly and without shame
from lust of fighting and the hope of plunder and
renown. Among the negroes of West Africa and in
Mexico a sufficient excuse was found in the desire to
obtain prisioners to sacrifice to the gods. But indeed
any excuse, or none at all, is sufficient wherever men
desire to fight and are easily organized for that purpose,
and where they have nothing more urgent to occupy
their energies. Industries, trading, and agriculture
throw difficulties in the way of military adventures,
^ Adriani en Kruyt, I, 201.

INTERNATIONAL RELATIONS 126

though there are seasons in which agricultural com-
munities rest from their labours and have leisure to
turn their attention to enterprises against their neigh-
bours.

No general rule can be laid down as to the methods of
waging war permissible in these stages of civilization.
Treachery and cruelty may be said to be universal.
No formal declaration of war is necessary. To fall
unexpectedly upon a peaceful village, to pillage, burn,
slay, before their victims can recover from their surprise,
and to do as much damage, and seize as much plunder,
or as many trophies, as possible is the height of hero-
ism. Very often these expeditions are confined to a
single raid. Retaliations of the same kind are inevit-
able, leading to a state of chronic warfare between
neighbours. Throughout Indonesia the object of a
raid is to procure heads of slaughtered foes, which are
then made the objects of religious ceremonies, and the
unfortunates thus sacrificed are thought to become
benigh protectors of their slayers. Among tribes
addicted to head-hunting to procure a head, though by
treachery and the slaughter of a woman or child, or
of an unarmed and infirm old man, is a proof of valour
and capacity which must be given by the aspirant to
marriage before he can obtain the hand of the lady he
desires. In North America, the equivalent trophy is
less cumbersome. The scalp only is torn off the fallen
foe, with little regard to whether he may be living or
dead ; but no sacred rites are paid to it. Prisoners
taken are never exchanged : they are tortured to death, or
else adopted into the tribe of their captors in the place
of a member who has been killed. A chief among the
Yao and other tribes of Central Africa " declares war by

126

PRIMITIVE LAW

killing or kidnapping some of his enemies. He may
either find them on a journey, or send an expedition to
their villages. Deeds of this kind proclaim that a
messenger sent to the aggressor will be either slain or
sent back mutilated, and all friendly intercourse is at
an end. War may be declared on a travelling party
by simply calling out ngondo (war). The natives
conduct war by making a series of attacks in order to
plunder or to destroy by fire and sword.” ^ North
American wars are waged with great bitterness. Whole
tribes have frequently been rooted out or driven away
and their land occupied by the conquerors, causing
movement and unrest throughout the continent. Of
the Coroados, or Caingang, of Brazil we are told that it
is very seldom that one tribe lives in peace and friend-
ship with the others, for an unimportant matter is
enough to set up conflicts between them. In the past
they have waged without compassion wars of annihi-
lation between themselves ; this is one of the chief
causes of a great diminution of their numbers ill this
State. Indeed, the Roman Catholic missionaries claim
that in recent years a frightful massacre, in conse-
quence of a quarrel about a woman, was only prevented
by the presence of a missionary and the respect in
which he was held.*

But not everywhere, even among the lowest races,
is warfare carried out with this savagery. The South
Australian aborigines are, we learn, fearless, but neither
bloodthirsty nor ferocious. Apart from mere raids
in punishment of a real or supposed murder, their wars
consisted of regular appointed battles at places and

^ Dufi Macdonald, I, X93.

** Anthropos,*’ IX, 26.

INTERNATIONAL RELATIONS 127

times previously agreed on. They usually took place
about daybreak or towards sunset, rarely lasting for
more than three or four hours ; and they were nearly
always witnessed by the women and children, and
sometimes by other natives who were not concerned in
the quarrel. Few of those engaged are killed outright,
though deaths from wounds are often numerous. The
hostile foes stand face to face and provoke one another
with noisy demonstrations and threats ; spears are
thrown and warded off or avoided. Finally, wounds
may be inflicted or somebody may be killed, and the
contest ends. " That their fights seldom terminate
fatally must be attributed partly to their skill in warding
off the spears and partly to the fact that they have no
thirst for bloodshed." ^ In the Moluccas, where a higher
degree of civilization has been attained, the testimony
is the same. A community which has determined on
war formally challenges the enemy. If the challenge
be accepted preparations are made to defend the village.
If the hostile forces meet they exasperate one another
with satirical songs and taunts until one party attacks
the other. In fighting, the effort is not merely to slay
as many as possible of the enemy, but to take their
heads ; and the conquerors return home with their
trophies to feast and celebrate the occasion in triumph.
Hostilities may last for years. They consist of raids
and the capture of heads, enlivened by occasional
battles. When a number of persons have been
slaughtered, peace is made, often by the efforts of
neighbouring districts, to which the proceedings of the
foes are probably inconvenient.® On the Island of

1 *' Native Tribes. S. Australia,*' 245-247.

' Riedel, 104, 233, 425, etc.

128

PRIMITIVE LAW

Wetar, indeed, to meet a stranger or one of. a village
belonging to a different district was to take his head,
especially if he were thieving wax and honey. The
head was often scalped and set up on a stake in the
bush ; in war-time (but only then) its flesh was eaten
and blood drunk. ^ On the whole, however, wars do
not seem to be waged with great savagery and bitter-
ness, or to result in much loss of life. From some of
the islands head-taking has disappeared for centuries.

The Trobriand Archipelago to the south-east of New
Guinea is inhabited by a people of one tribe only,
speaking the same language, having the same customs,
intermarrying and participating mutually in all festivi-
ties and ceremonies. This close connexion, however,
does not prevent their indulging in internecine warfare.
The various districts into which the archipelago was
divided were frequently at war, and of the two most
important we are told that their relations were always
strained. A row over gardens, pigs, women, a breach
of etiquette or suspected sorcery would result in a* pre-
liminary fight on the spot, which might be smoothed
over, or might lead to a formal outbreak of war. Each
side mustered its forces. "Midway between the two
capital villages a place was selected and a circular
arena cleared, which would be the theatre of fighting.
The opponents ranged themselves opposite each other,
at a distance of some thirty to fifty metres apart, and
throwing their spears. Behind the warriors stood or
sat the women, helping the men with water, coco-nuts,
sugar-cane, as well as with verbal encouragement. . . .
Fighting lasted as long as both parties could resist the
onrush of their opponents. When one party had to

^ Riedel, 445.

INTERNATIONAL RELATIONS 129

flee, the road to its villages was open, and the enemy
would rush on, killing men, women, and children indis-
criminately, burning the village and destroying the trees.
The only remedy for the defeated party was to abandon
their villages and to fly for life into another district.
As a rule, practically everybody, especially the defence-
less ones, would succeed in escaping. Thus, in 1899
about a dozen villages were destroyed, and the van-
quished had to remain homeless for a time. The main
village, Omarakana, was not rebuilt before a formal
atonement ceremony had been held between the victors
and the vanquished, the latter having been living in a
provisional village some six miles to the south of their
own village."

The natives were neither cannibals nor head-hunters,
and therefore lacked not only the two inducements to
warfare in that quarter of the world, but also two
incentives to prosecute it with ferocity and to initiate
it with treachery. Yet they were ardent fighters and
conducted systematic and relentless wars. War was,
however, carried out with " a considerable amount of
fairness and loyalty, there being strict rules of conduct
which were scrupulously observed." They were evi-
dently innocent of " Kultur." They never practised
nocturnal raids on another village, taking it by surprise
and ruthlessly murdering all inhabitants in their sleep
— ^a form of warfare very popular among the majority
of Papuasian tribes. Nor would they invite a party
from another place and murder them treacherously.
They never fought without warning, nor would they
fight at night ; and though complete victory — death
of the enemies and destruction of their viUage — ^was the
ultimate aim of a war, the mere fact of fighting as a
9

180

PRIMITIVE LAW

sport, and the glory derived from a display ot daring
and skill, were an important incitement to warfare.” ’

Such are the methods of making war in the lower
culture, more or less brutal according to the greater
or less ferocity of their manners and the excitability
of their passions. No convention provides for what
acts are permissible and what are not. Desultory
warfare may go on for years, or it may terminate in a
pitched battle after a few days. But sooner or later
both sides get weary; and if one does not submit,
means are found to accommodate matters between them.
Often the lives lost, and the wounds of the survivors
are reckoned up, and the side that has escaped morn
easily agrees to pay for the overplus of the enemy's losses.
This is the method recorded to have been taken by the
ancient Norse in making peace, after fighting among
themselves.^ Sometimes each party pays for all the
lives it had taken. On the Island of Bougainville
(Solomon Archipelago) each life is valued at one hundred
fathoms of shell-money, these made of a kind oi mussel-
shell ; and in making peace payment is formally tendered
for each life taken, together with additional compensa-
tion for the plunder taken. A scaffold is erected on
the site of the battle. The strings of money are cere-
monially hung openly in view of every one and fetched
away as accepted first by one party and then by
the other. The proceedings are completed by the
opponents chewing betel-nut together and a feast of
roast pork.®

This constitutes a public ceremony of peace and

^ Malinowsky, " Man,” XX, lo, ii.

Morris, ” Ere-Dwellers,” 130.

® Thurnwald, ” Zeits. vergl. Rechtsw.,” XXIII, 325-326.

INTERNATIONAL RELATIONS 181

reconciliation. Such a ceremony is necessary formally
to end a war ; and its publicity and formality fix it
in the minds of all. In North America the ceremony
usually consisted in the smoking together of the pipe
of peace, after which both belligerents resumed friendly
relations. So in Central India the conclusion of hostili-
ties between the Kalar, or Kalwar, now an occupational
caste, but perhaps originally an offshoot from the
Bania or other Vaishya tribes, and the Bhils, a non-
Aryan, probably Kolarian tribe, was marked by the
solemn administration of opium by the priests to all
present at the ceremony. ^ The Iban of Borneo on
a similar occasion sometimes make a large wooden
image of the hornbill, a sacred bird, and hang upon it
great numbers of cigarettes. These are taken down
during the ceremony and smoked by all the men
present,^ An essential of the conclusion of peace by
the Bukana in the north of New Guinea is smoking
cigarettes and chewing betel together. In the case of
serious •inter-tribal conflicts, however, both parties eat
together, presents are exchanged, and certain members
of either side take up their residence in the villages of
the other.®

Throughout the eastern hemisphere, however, the
most widely spread ceremony of peace-making consists
of a sacrifice or of a blood-covenant, or often a mixture
of both. Typical of the crudest form of sacrifice may
he taken that of the Porno and the Boumali on the
middle course of the Sauga River in the French Congo,
here, when peace is concluded between two villages

that have been at war, the inhabitants, men and womeh,
are assembled in a corner of the forest, a big, fat slave
is brought, his head is stuck in the ground, his legs
upwards, and he is cut in two vertically, one half of
the body is given to each village, and each person, man
and woman, eats a piece, and drinks palm-wine to the
sound of the tom-toms. On less solemn occasions it
is sufficient to cut the prepuce of a boy, and to sprinkle
the blood flowing from the wound mingled with palm-
wine on the two chiefs, who swear to make war no
more, nor to capture wives, or steal kids from one
another.^ Several of the tribes in British territory on
the other side of the continent, instead of a slave
sacrifice a dog, which is cut in two ; representatives of
both sides then take hold of the divided halves of the
dog and swear peace and friendship over it.^ The
Wachaga on the sides of Mount Kilimandjaro take a
rope which is drawn three or seven times by uncircum-
cized boys round an assembly of warriors of both sides
and the ends are knotted together so as to enc^pse the
warriors. A kid is then brought and made to stand
parallel with one side of the rope. The oath is admini-
stered to the men inside the circle, and the kid and rope
are cut in two at one stroke. The blood is sprinkled
over both sides, and the flesh of the kid is consumed by
the old men who superintend the rite. It is said that
formerly political leagues were sealed with the blood
of uncircumcised children. The ceremony is reported
in two different forms. In one an innocent boy and
girl, supplied by the district begging for peace, were
circumambulated three or seven times by the warriors

i “ R. E. s.r I, 30, 31.

Frazer, ” F. L. Old Test,** I, 394, 395.

INTERNATIONAL RELATIONS 188

uttering the words of the oath. The children were
then cut into halves and buried on the boundary of the
two warring districts, the warriors entering into the
engagement afterwards walking over the grave and
going home. A milder form of the rite, like that of the
tribes on the Sauga, only involved the circumcision
of the two children and swearing peace over their
blood, which was then drunk mixed with beer. The
curse denounced on those who violate the pact appears
to be the same in all these forms — death like that of
the victims without offspring — a curse to which the
Whchaga are very sensitive.'

Sir James Frazer has recently collected and ex-
pounded a number of cases of such covenants by sacri-
fice and the taking of an oath between the divided
halves of the victim, taking as the text of his exposition
the covenant made by Jahwe with Abram. It appears
from his inquiries that, as it was among the ancient
Hebrews, so still among many modern peoples in the
lower culture this is a very solemn form of covenant,
and therefore specially suitable for a treaty of peace.^
It is not necessary here to discuss the variations assumed
by it.

Nor need we delay long over the ceremony of blood-
brotherhood. It is well known and widely spread. By
it the blood of the parties to the rite is mingled and
becomes one, so that they regard each other as really
akin. Hence we can readily understand why it is
specially appropriate in peace-making, though by no
means confined to such occasions. Mr. Weeks gives
an account of the formalities on the settlement of peace

' J. Raum, Arch. Religionsw.,’* X, 285-290.

2 Sir James Frazer, op. cit., 1, 392 sqq.

184

PRIMITIVE LAW

between Monsembe and some other towns on the Upper
Congo with which there had been war. When the
parties met, a stick, called ndekot was carefully scraped
and the scrapings were mixed with salt. The head-
man of each side clasped the other's right hand with
the ndeko between the palms. Incisions were then
made in the arms, the mixture of nef^fto-scrapings and
salt was rubbed on the cuts, and each headman sucked
the other's cut for a few moments. Each in turn took
the ndekO‘Si\c\i and struck the wrists and knees of the
other, saying : ‘‘If ever I break this covenant, may I
be cursed by having my nose rot off I " Sugar-cane
wine was drunk ; and then " a medicine man took a
palm-frond, split it, and put one half of the frond
across the path leading from Monsembe to the upper
towns — ^the towns of the contracting parties. This
was not only a sign that all that palaver was finished,
but it was a fetish having power, it was supposed, to
punish anyone who broke the treaty. It was firmly
believed that the side that renewed that quarrel would
get the worst of it by wounds and death. ^ In the
Moluccas there are more forms than one of the blood-
covenant. On the Island of Wetar a league between
two persons, or two districts, is formed in the presence
of the chiefs by the persons concerned, drinking together
blood from each of their right hands mixed with kalapa
water. Thus they become blood-brothers ; and we are
significantly told that the people of the negari [districts]
that have taken such an oath cannot marry one another.*
In case of war between two districts on the Island of
Makisar, or Keisar, their representatives bring to the
dwelling of the rajah of the island a pig and a sheep.

1 Weeks, " Congo Cannibals/’ 73. * Riedel, 446, 447.

INTERNATIONAL RELATIONS 186

The rajah cuts the right ears of these victims and drops
some of the blood that flows into a kalapa husk contain-
ing koli-water. Praying the tutelary spirit (mahkarom)
to curse those who violate the peace anew, he spits
into the fluid in the kalapa husk, and gives it to the
chiefs to drink. After they have done so they kiss
the right foot, hand, and breast, and the nose of the
rajah, and then each other’s right hand and nose.
Their followers and people of their district do the same
and break out into a great weeping, confessing their
fault to the rajah and begging for pardon. The scene
eilds with a feast and the drinking of more koli-water.
Here the blood of the covenanters is not exchanged,^
but they become of one blood by drinking that of the
unhappy pig and sheep. Among the Kayan of Borneo
the equivalent ceremony is that of invoking a chicken,
and with a sword striking off its head, and then smearing
the right arms of the men with the bloody blade.* To
end hostilities when one party is victorious, the Jabim
of IJew Guinea do not deal in blood : the boldest of
the conquerors makes a streak with lime such as is used
for chewing with betel on the foreheads of the defeated
party, lest they should be exposed to the arbitrary
action of the spirits, who might affect the growth of
their dogs and pigs and loosen their own teeth.®
Whether after these elaborate rites, after these oaths
and curses, faith was kept by the contracting parties
must probably be answered differently in each case.
Not all peoples in the lower culture can be accused of
breach of faith. The Iroquois are illustrious for their
unwavering fidelity to treaties. Both with aboriginal

1 Riedel, 425. * Hose and McDougall, II, 66.

Neuhauss, III, 318.

186

PRIMITIVE LAW

nations and with the white intruders they frequently
entered into treaties. " All of these national compacts/'
says Morgan, " were ‘ talked into ' strings of wampum,
to use the Indian expression, after which these were
delivered into the custody of the Onondaga sachem, who
was made hereditary keeper of the wampum at the
institution of the league ; and from him and his
successors was to be sought their interpretation from
generation to generation." North American nations
on making a treaty always exchanged belts, which were
not only the ratification, but the memorandum of the
compact.' It was the business of the official keeper
of the wampum to remember its exact meaning, and to
recall and translate it into speech on all proper occasions.

Morgan, " League/* I, 327.

CHAPTER VI

SANCTION

T he famous definition of Law formulated by
the great English jurist, John Austin, and
ultimately derived from the seventeenth-
century philosopher, Hobbes, treats it as a rule prescribed
by a sovereign to his subjects, who are necessarily
obnoxious to the sanction enforcing the law and the
duty of obedience.^ This definition had in view the
conditions of a civilized community, and it was long
accepted in British juridical philosophy. But anthro-
pological researches and the relations of the State with
a large number of savage and semi-savage peoples
have, since Austin's day, widened the scientific outlook
and rendered necessary a new definition, in which
account has been taken of the conditions of life in
relatively primitive communities. In such communities
law is not the act of a sovereign, whether an individual
or a body of men : it is the traditional rule of the
community; and it is enforced, not by a sanction
prescribed ad hoc by the sovereign, but one that is
involved in the beliefs and practices of the community.
Having summarized the laws of such communities, our
next business is to consider the sanctions by which they
^ Austin, “ Jurisprudence,” I, 316, 317.

137

188

PRIMITIVE LAW

are enforced, and which are by no means always the
same in kind as those of civilization.

The indistinction already noticed between provinces
of primitive law that we should regard as wholly dis-
parate is a characteristic which is at the base of savage
thought. The " primitive " mind perceives resem-
blances more quickly and fully than it perceives differ-
ences ; it - apprehends and accepts wholes which we
should analyse into parts in order to understand them ;
it unites where wc should divide. This synthetic
attitude renders every part of the civilization of a
relatively primitive people indivisible without ^reat
difficulty from the rest. It draws no line between law
and morality, religion, medicine, or art. All these are
part of the social and mental fabric, and the traditions
by which they arc governed are the same. The savage is far from being the free and unfettered creature of Rousseau's imagination. On the contrary, he is hemmed in on every side by the customs of his people, he is bound in the chains of immemorial tradition, not merely in his social relations, but in his religion, his medicine, his industry, his art : in short, every aspect* of his life. These fetters are accepted by him as a matter of course ; he never seeks to break forth. To some of them there are definite sanctions, to others none ; but he does not distinguish between them. To the civilized man the same observations may very often apply ; but the civilized man is too restless, too desirous of change, too eager to question his environment, to remain long in the attitude of acquiescence. By the
action of many generations his reverence for the thing
that is, and for the wisdom of his ancestors which
produced it, has been sensibly reduced ; and he has no

SANCTION

189

compunction in challenging either the one or the other,
whereas it does not occur to the savage to do so, or if
it does he does not dare to attempt it.

But the savage's perception of resemblances differs
very much from ours. He sees resemblances between
objects which, to our eyes, have not a single point in
common ; for these resemblances are developed from
mental associations which are obscure to us. And the
resemblances in question are expressed in terms of
identity. The Borord of Brazil claim actually to be
asaras, a kind of bird ; they believe their neighbours,
the *Trusnai, to be actually certain water-animals.^
It is a well-established fact that the masquers in a
masked dance are among savages regarded as them-
selves the mythological beings which they represent for
the time being. Tribes as wide apart as the Musquakie,
an Algonquin people of North America, and the inhabi-
tants, of Pulu, one of the islands of Torres Straits, have
funeral ceremonies in which the dead man is imperson-
ated by a masked dancer. In the latter case “ there is
no doubt," says Dr. Haddon, " that the maskai [masked
dancers] represented the ghosts or spirits of recently
deceased people, the identity of the ghost being indi-
cated by a pantomimic representation of characteristic
traits of the deceased. The idea evidently was to
convey to the mourners the assurance that the ghost
was alive, and that in the person of the dancer he
visited his friends ; the assurance of his life after death
comforted the bereaved ones. The women and children
were supposed to believe that the maskai were really
ghosts." * In the former case the dancer not only

‘ Von den Steinen, 512, 353.

" Torres Straits Exped.,” V, 256.

140

PRIMITIVE LAW

impersonates the deceased ; he is entertained, and
treated as such by the relatives, he takes the name of
the deceased for the rest of his life, he is adopted by the
dead man*s parents, and is pledged to a son's duty
towards them.^ In Russia the Mordirus have a similar
ceremony on the fortieth day after the funeral when
a representative of the deceased, who has been invited
home from the tomb the previous evening, appears,
dressed in the very clothes he wore lying on the death-
bed. He is received with joy, welcomed with gifts,
and eagerly questioned as to his life beyond, and as to
the friends he has met in the spirit-land. He gives
tidings of the life after death, and of the deceased rela-
tives of his questioners in great detail. He sits down
to table with them at a feast of which the mourners
partake with vigour, but of which it is enough to pour
for him a few drops of spirit. At midnight he gives
them his exhortations and good wishes, to which they
listen on bended knees. The feast is continued until
dawn, when the final farewells are pronounced,, a bull
is sacrificed and eaten, and, loaded with provisions and
money for his life beyond death, he is placed, lying on
a bed, in a cart and conducted back to the tomb, from
whence he is supposed to have come.*

All these elaborate ceremonials are more than a mere
pantomime. The man who represents the dead is
identified with him, and treated accordingly. To us
it seems incredible that this identity should be taken
seriously ; and of course it is impossible to say how
much at the present day is verily believed and how
much is merely traditional ritual. But the " primitive's "

^ Miss M. A. Owen, ** Musquakie,*' 81--86.

® Smirnov, I, 366-369.

SANCTION

141

mentality is not ours. With him, in the absence of
exact knowledge, mysticism holds undisputed sway.
The mystical relations of men and things are conceded
by all ; and they are the most important, the supreme
relations. We must expect to find, therefore, that the
“ primitive’s ” view of human conduct differs from
ours, that many of his laws are incommensurate with
ours, and that they are enforced with sanctions in-
comprehensible to us. We must not, however, forget
that all sanctions, even those that wc call supernatural
sanctions, are sanctions imposed by society ; and they
ddtive their power from the universal conviction of
their reality, a belief so strong as to give them very
often an automatic operation.

We may divide the sanctions attaching to laws in
the lower culture into several classes. First come evils
held to be intrinsically connected with the violation
of a law. The Arunta forbid the eating by a man of
the flesh of any animal which has been killed or handled,
or even seen, by certain relatives ; and as these relatives
arc reckoned according to the classificatory system, by
which relationships are almost universally reckoned in
the lower culture, the prohibition is very wide. If
he violated it “ the food would disagree with him, and
he would sicken and suffer severely, a belief which has
the result of securing the observance of the custom,"
the intention of which is to assist in regulating the supply
of food.^ Boys who have been recently initiated are
prohibited among many — ^perhaps all — ^Australian tribes
for a time from eating the flesh of certain animals
under similar sanctions. The sanction, however, among
^ Spencer and Gillen, ** Central Tribes/* 469.

142

PRIMITIVE LAW

some tribes, such as a branch of the Kulin, is that the
boy infringing the taboo of the spiny ant-eater or the
black duck would be killed by thunder, or if of the
female opossum, or native bear, he would be liable to
fall when climbing trees — ^sanctions which come within
the next category to be considered. The object is to
discipline th^ youths, and to reserve the best food for
the old men.^ Another illustration is afforded by the
jajaurung of Victoria, by whom, " whenever a female
child was promised in marriage to any man, from that
very hour neither he nor the child's mother £was]
permitted to look upon or hear each other speak, nor
hear their names mentioned by others ; for if they did,
they would immediately grow prematurely old and
die." ^ The intention here apparently is to prevent
marriage or sexual intercourse between the parties to
the taboo. The sanctions in these cases are, so far as
appears, automatic in their action. There is no hint
of any interference on the part of any supernatural
being ; there is certainly no overt interference on the
part of society. The prohibition, it is true, is in the
social interests ; but the sanction really operates to
prevent its violation entirely by the intensity of the
belief held and insisted on by society in the threatened
consequences. A similar terror is inspired by the
tapu which hedges the sanctity of a Maori chief. Well
authenticated instances are known in which persons
unwittingly guilty of violating the tapu have died from
fright,®

Another class of cases must not be confounded with
the foregoing, though the " primitives themselves
do not always seem clearly to distinguish them. It is
that in which the sanction is believed to be enforced
by some power we denominate supernatural. Mourning
ceremonies all over the lower culture — ceremonies
sometimes very uncomfortable and even painful to
the survivors — ^are carried out in fear of vengeance for
neglect by the ghost of the deceased. This is explicitly
stated in regard to the frenzied lamentations and serious
wounds of mourners among the Arunta ; ^ as well as
to similar rites in other parts of the world. Reference
has just been made to the food-restrictions imposed on
youths who have undergone the ceremonies of initiation,
the sanctions of which differ in various parts of Australia.
The tribes about Maryborough in Queensland prohibit
the eating of emus’ eggs, and threaten that if the youths
even break an emu’s egg, “ the offended spirits will
shortly raise a storm of thunder and lightning, in which
the .unlucky culprit will probably be struck down.” ^
Among the Yuin, ” the novices were told that if they
[ate] any of the forbidden animals, the Joia [magical
power] belonging to it would get into them and kill
them.*' ® The tribes about Maryborough say that a
supernatural being called Kohin ” is offended by any
one taking a wife from the prohibited sub-class, or not
wearing the mourning necklace for the prescribed
period, or eating forbidden food. Such offences bring
on the offender Kohin's anger, and sooner or later the
person dies in consequence.” * The effect of the terror

^ Spencer and Gillen, ** Central Tribes,** 510.

Howitt, “ S. E. Austr.,** 60G ; Ciirr, II, 377.

® Howitt, op. cit., 560. ^ Ibid., 498.

144

PRIMITIVE LAW

was so great that Howitt records that he knew of fatal
cases ” produced by what one must call conscience in
novices who had broken the rules and eaten of for-
bidden food ** ; but he gives no information about the
cases or the tribes in which they occurred.^ Some
tribes, however, did not leave the breach to the sanction
of supernatural penalties and the operation of
conscience ; they definitely threatened death — ^and
they performed it.^

The supernatural sanction thus becomes an effective
safeguard of social rules, whether it take the form of
punishment by mystical impersonal power, or by
ghosts or other imaginary beings. It is rooted in the
beliefs of the people, it segregates the offender from
society by the mysterious horror it creates. In higher
civilizations it is attributed to the anger and vengeance
of the gods. Tales of their vengeance, sometimes
lighter, sometimes heavier, arc found all over the world.
The lighter kinds of vengeance may be exemplified in
the beliefs of the Bar&-speaking Toradjas of Celebes,
whose chief industry is agriculture, and whose thoughts
are said to be all concentrated on their rice-
fields. Everything they do for the gods and the spirits
of the deceased turns to the benefit of their rice-fields ;
on the other hand, every transgression of morals, or of
established custom, is visited by the gods on their
crops.® Various breaches of sexual morality — ^adultery,

1 Howitt, ** S. E. Austr.," 639. He does, however, mention
subsequently the case reported to him of a young Kumai, who
had “ stolen some female possum which he was not yet permitted
to eat and who lay down, and within three weeks literally died
of fright** (ibid. 769).

Ibid., 583, 594.

® Adrian! en Kruyt, II, 229.

SANCTION

145

incest, and others — are frequently held to be punished
by the gods by rendering the guilty persons barren,
or by the infliction on the whole community of the
more serious penalty of a plague of wild and ferocious
animals, excessive rain or drought involving destruction
to the crops, earthquakes, or epidemics. Such conse-
quences can only be stayed or altogether averted by
special rites of atonement, or by the death of the guilty ;
and they lead thus in many cases to the execution of
the criminals. This appears to have been the belief
of the Hebrews and of the Greeks ; and it is abundantly
exemplified among peoples of the lower culture in
modern times. Nor is the belief in such supernatural
interference confined by any means to sexual trespass.
Other high crimes and misdemeanours, especially when
committed by kings and rulers, bring down the ven-
geance of the gods in a similar way, as when King David
caused a pestilence by daring to take a census of his
people. The wrongful or even accidental taking of
human 'life excites the horror of the community. A
murder is deemed to entail pursuit by the ghost of the
victim — a superstition not wholly eradicated from a
high stage of civilization, and one that among various
African tribes compels even warriors returning from a
battle in which they have slain foes to undergo rites of
purification. In British Columbia a Ntlakapamux who
has killed an enemy in battle fears that the vengeance
of the dead man would strike him blind, unless
he propitiated the ghost by painting his face
black. The neighbouring LiUovet entertain the same
belief.^

A sanction of a more tangible, though perhaps not
^ Jesup Exped.,'? I, 357 ; II, 235.

10

146

PRIMITIVE LAW

more effective, kind is the execution or bodily mutila-
tion of the offender by the direct action of society
through its recognized officials. Among “ primitives/*
dwelling for the most part in frail wooden buildings,
there are often no means of a milder punishment by
incarceration. Hence death or mutilation, or some-
times a severe flogging, is the only corporeal sanction
that can be employed to secure the observance of law.
Such a sanction is freely employed, and, it need hardly
be said, with a brutality at which we shudder, and
against crimes we do not recognize as such, or Jtreat
very lightly. I do not pause over such offences as that
of adultery with the wife of an African ruler : the
corresponding crime is recognized by British law as high
treason, and is punishable by death, though for other
reasons than operate on the negro mind. By the
Hebrew laws, any adultery of a married woman entailed
the death of both parties. Any departure from estab-
lished custom, any infringement of the observances held
binding upon a member of the community, is 'viewed
as a serious matter, and one that must be punished,
if need be, should the threat of mysterious consequences
be insufficient to restrain it, by the sharpest reprisals
of society. Allusion has already been made to the
ritual prohibition of the Australian tribes, generally
sufficiently ensured by threats of supernatural conse-
quences, but in case of necessity enforced, by some
tribes at least, by death. In fact, ritual prohibitions
have, among many nations, if not everywhere, been
enforced by corporal punishments. Their object is
at all costs to preserve in all its traditional details the
national or tribal religion. The gods are jealous and
irritable beings, easily offended and hard to be appeased.

SANCTION

147

It is needless to search for illustrations. The old
Hebrew legislation, comparatively humane among semi-
civilized peoples, is replete with Draconian prescriptions,
of which the penalty of death imposed upon the profaner
of the Sabbath is by no means the only, or perhaps the
most atrocious, example ; and the Mosaic law in more
respects than one has for generations set the tune to
which Christian Europe has danced. We need not
therefore be surprised if in lowlier societies ritual
ordinances are precisely and literally enforced by
extreme and relentless penalties.

Nor are these penalties confined to wilful or reckless
infringement. Primitives** draw no strict line of de-
marcation between voluntary and involuntary offences :
a certain degree of civilization is necessary to distinguish
between them.^ Society looks at the thing done, and
does not — at least in the lowest stages of evolutionary
development — often trouble itself with motives. Acci-
dental homicide is confounded with wilful murder,
evoked the same passion, and is followed with the same
consequences. What is true of homicide is true of
other offences. It is recorded that in the Kingdom of
Porto Novo on the Slave Coast of West Africa, early
in the eighth decade of the last century, a young man
accidentally killed a python. Now a python is wor-
shipped as the manifestation of the god Danh-gbi, and
the priests of the god, in whose hands the vindication
of his divine majesty rested, sentenced the culprit to
be burned alive. But he escaped and put himself
under the king's protection. The king took his part,
and succeeded in imposing his will on the priests,

though he ea.rned their permanent ill-will which eventu-
ally cost him his life.^

The distinction between wilful murder and more or
less venial homicide marks an advance in civilization,
such as is found in the provisions of the Hebrew law
relating to the cities of refuge, provisions which in their
form bear witness to the difi&culty of imposing upon a
barbarous people such an amelioration of the ancient
law.* Thus among the Nabaloi Igorot of Luzon a
wilful murderer was hanged with circumstances of
barbarity, but one found guilty only of what we shojuld
call justifiable homicide was merely condemned to pay
the funeral ceremonies of the man he had killed. If
two men fought and they were both at fault, and one
was killed, the survivor was hanged ; nor was the fact
of both being drunken allowed to excuse the survivor.
Yet strangely enough we find it laid down that if a
man went to the house of another, and fought with, and
killed him, the slayer was not punished, beyond being
condemned to pay for the funeral ceremonies. In such
a case our law would deem the acts of the slayer evidence
of wilful murder, and he would be uncommonly lucky
if he escaped.* There can hardly be any mistake, for
the reporter is no hasty or passing traveller, but an
American official who has lived for more than twelve
years among the people, and has taken pains to learn
their dialects and to study their customs and beliefs.
Moreover, he gives the native text of these and other
laws. As he does not comment on this law, we must
conclude that he does not notice what seems to us

1 Ellis, 145.

Exod. xxi, 12-14 ; Num. xxxv, 6, 9-34.

» “ Univ. Cal. Pub.,” 257.

SANCTION

149

the inconsistency, or cannot explain it. Likewise the
Elgeyo of East Africa do not allow the family of a
murdered man unlimited right of vengeance. The elders
fine the murderer thirty-seven goats, which he pays
presumably out of his own stock, or by the help of his
own family. These are divided among the murdered
man's relations, and over and above them if he be the
owner of cattle he must give a cow to his victim's mother
— a symbol " that she may bear another child to replace
the lost one." But this is not sufficient, for in addition
the murdered man's family is at liberty to burn his
house and to slaughter and devour his live stock. Such
vengeance would not be permitted in the case of un-
intentional homicide. The elders would impose a fine of
a minimum of five goats for the benefit of the deceased's
family ; and with that they would apparently have to
be satisfied.^

Crimes against a god are often only expiable by
sacrificing the criminal. Such were not only the killing
of a« sacred animal, as in the case mentioned above.
In ancient Mexico, the theft of gold or jewels was held
to be a crime against the god Xipe. The criminal was
accordingly made a human sacrifice at the feast which the
goldsmiths celebrated in honour of the god in question.
He became taboo to the god, and such a death was
regarded as honourable.*

It is a well-recognized principle in civilized law that
ignorance of the law is not allowed to excuse a breach.
So essential is this for the due administration of justice
and the preservation of peace that it is not surprising

to find it recognized also in the lower culture.^ There
it is often exceedingly troublesome, for the laws and
customs of various peoples are so widely different that
a stranger from another country is not unlikely to find
that actions which are perfectly innocent in his own
land are not permissible — ^are even highly criminal —
among a tribe whose customs are unknown to him.
Thus it is reckoned by the Ba-ila, a Bantu people in
Central Africa, a serious thing when a hunter has killed
an elephant, to pass at the back of the animal as it lies
dead, or to make remarks about, or laugh at, the appear-
ance of its buttocks.® The offender will be seized and
held to ransom for such an offence. A similar offence
is committed, not only by stealing, which obviously no
one could deny knowing to be an offence, but by
damaging, even involuntarily, accidentally and un-
consciously, a “ medicine or a receptacle of medicine
belonging to another. Anyone who knows the strange
and imexpected objects sometimes regarded as " medi-
cine ** will appreciate the wide door this opens to what
we should regard, and what many a native belonging to
another tribe would regard, as preposterous claims.®
After this it seems a comparatively reasonable claim,
when a visitor at a strange village was charged by a
savage cow and to defend himself snatched up a stool
and struck the beast, but had the ill-luck to break the
stool, that the owner at once seized him and tied him
up, demanding a cow as a ransom for the damage to
an article of comparatively small value. But, as the
authors to whom we are indebted for the record observe,

" we have to remember that what seems trivial to us
is in their eyes very precious. And it is not so much
the value of the thing that a Mwila looks at, as the fact
that it is his, and nobody has the right to interfere with
it or damage it. This of course the visitor knew ; he
was in fault, though life or limb may have been at
stake ; and all he could do was to protest against the
exaggerated value put by the man upon his piece of
furniture which was damaged in defending himself.” '

The vindictive feeling of some societies (not always
the lowest) is not satisfied with death as a punishment
for some offences. It pursues the criminal after death
by the denial of funeral rites. The dead man is entitled
to proper funeral rites. Among the Dyaks of Borneo
they must celebrate these rites, in order that the soul
may have rest, and the inhabitants of the spirit world
may associate with him.* The Tarahumares of Mexico
celebrate three functions (a woman requires four) to
bid a formal farewell to the dead, and to chase them off
to the end of the earth, where the place of the dead is.
They are supplied with food and drink for their journey,
and are expected to go off to their rest and to leave the
survivors in peace. ” If the feasts were not given, the
departed would continue to wander about in animal
shape ” ; and a story is told of one unhappy man who
had changed into a lion (puma ?).* It is therefore as
much to the interest of the survivors as of the deceased
that the rites be performed. In Northern Nigeria
” the spirits of the dead would find no rest unless

1 Ibid., 392, 394.

Grabowsky, “ I»ternat. Arch./' II, 188 ; “ Anthropos.,"

I, 23.

Lumholtz, “ Unk. Mexico,” I, 383-390.

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honoured in the proper fashion . . . and if they are
not treated properly they will certainly vent their
displeasure upon their neglectful relatives." ^ The
Bulgarians believe that the souls of those who have not
been properly buried by the priest remain for ever on
the earth.* Similar beliefs are found in the Tyrol,*
in France,* and indeed all over Europe, no less than
among "primitives." Accordingly a denial of burial
rites is a serious additional punishment, even when a
criminal has been executed by an atrocious death. It
is a punishment for the survivors as well as for the
criminal himself. This barbarism is only practised as
a rule upon the bodies of such whose deeds excite the
special horror of society. A part of the vengeance
upon enemies commonly reported of savage societies
is to stick their heads on poles and leave them there as
a warning to others. The most brutal dismemberment
of criminals and outlaws was usually performed by the
Germans and other tribes who overwhelmed the decaying
Roman Empire.® It lasted through and beyond* the
Middle Ages in most if not all the states of Europe.
Criminals convicted of various offences, especially
treason, were subjected to this last indignity. In our
own country to be hanged, drawn, and quartered, or to
be hanged in chains until their bodies dropped piecemeal
away was an- all too common sentence ; and after the
Jacobite rebellions of the eighteenth century the heads
of executed leaders were to be seen on Temple Bar.

1 Tremeame, “ Tailed Head-hunters,” 190.

Strausz, ” Bulgaren,” 453.

Zingerle, ” Sitten,” 54.

Laisuelle de la Salle, " Centre de la France,” II, 91.

"[Zeits. vergl. Rechtsw.,” XXXIII, 359-367, where the

matter is fully discussed.

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158

In the burning of heretics, part of the Church’s hate
found its gratification in the impossibility of gathering
and performing burial rites over the ashes of the
victims.

As civilization advances, the extreme penalty of
death or mutilation is in many cases mitigated or com-
pounded for. The involuntary crime of giving birth
to twins, usually held to be evidence of adultery, or
frequently a monstrous birth involving a portent of
supernatural displeasure only to be mollified by the
instant destruction of mother and babes, is compounded
for in West Africa by the extinction of one of the
children, cither the first-born of the two who is looked
upon as specifically the adultrine issue, or the weaker
of the two (the girl, if the children are of different sex),
and, with or without killing either of the children, by
the banishment of the offending mother. Banishment,
however, whether for this or any other crime, is a
penalty hardly less terrible than death. In a society
founded on kinship, natural or artificial, as a society
in the lower culture is, a person whose ties of kinship
are not recognized by his proper community is an
outcast and an alien from all. He meets with nothing
but universal hostility, and his death is certain, if not
by violence, at any rate by slow starvation and misery
alone in the forest or the wilderness. Analogous to
this fate is that of expulsion from caste in India. The
victim suffers, often from what in another social
organization would be regarded as a trifling violation
of ritual requirements, a universal boycott. No one
will consort with him, no one will speak to him, no one
will minister to him in his utmost need. His nearest
kin repudiate him. They dare not approach him on

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PRIMITIVE LAW

any pretence, lest they themselves be also put out of
caste. For this boycott, as in the case of taboo in other
lands, is a most infectious disease, immediately com-
municated to all who come into contact with him, and
to the very vessels and implements which he uses.
From its terrible consequences, however, the caste
usually provides, except in cases of persistent and
impenitent disregard of caste rules, a way of escape,
by submission, and the performance of certain rites
(including a substantial dinner to the caste-brethren
at the offender's expense), after which he is received
back into caste and nothing more is said.

In a society where trade and industry have created
wealth two more mitigations remain — ^fine and slavery.
Fine as a sanction is an alternative by which wealthy
men often escape the death penalty. The ancient
English and Welsh laws, like those of most of the
nations founded on the ruins of the Roman Empire,
contain elaborate scales in which the lives of persons
of different ranks of society, from the king downwards,
were valued, and other crimes were treated on similar
principles. The Wabende, a Bantu tribe on Lake
Tanganyika, cultivate the ground, fish the lake and
trade, undertaking even short trading journeys. So
much are they accustomed to this, that it is somewhat
of a disgrace to any man who has never been outside
his native village. Murder is in theory liable to be
punished by blood vengeance. It is limited in case of
murder of an ordinary man to reprisals upon the offender
himself, but the murder of a petty king {moami) involves
the offender's entire family. But the crime is capable
of being compounded for on payment of the blood-
price. It rests with the chief who has jurisdiction

SANCTION

155

at the place to decide whether the lex talionis shall be
enforced, or whether a compensation shall be accepted ;
and if the injured kin in spite of the chief's decision to
the contrary slay the offender it will itself have to pay
the blood-price for so doing. For very serious wounds
and bodily injuries death is likewise the nominal penalty,
but for all other crimes there is a regular tariff. In case
of murder if the murderer himself cannot pay the blood-
price, his relatives must help him. If they cannot
pay between them, the murderer, his wife, and children
are .enslaved.^

It is very often supposed that this method of treating
crime, and especially murder, implies merely a careless-
ness of the value of human life and security. In a
state of society in which men always go about with
arms, and must be always more or less on the alert
against enemies and lawless men, it docs imply that
men must be content to take the risks of a disturbed
condition of the peace, to defend themselves and their
property against attack, and not depend entirely upon
the impersonal protection of the law. But it means
much more. Murder, accidental homicide, violations
of property, assaults, wounding — ^from which an indi-
vidual suffers — are resented by the whole force of his
kin and lead to blood-feuds that convulse the entire
community and may culminate in the most disastrous
results. As society becomes more and more closely
organized, it views with increasing alarm the conse-
quences of these feuds. Measures to terminate them
become necessary. As a means to this a price is fixed,
a rough valuation is made by which the lives of different
ranks and other crimes than homicide are appraised ; and
^ ** Anthropos," I, XI, 98, 106.

PRIMITIVE LAW

15a

the man who is found guilty is condemned to payment.
Such a society has not yet emerged from collective
responsibility. The criminal is, whether voluntarily or
compulsorily, helped to pay by his kin, and the fine goes
to the head of the State, if the State as such effectively
exists, or is divided among the relatives and dependants
of the victim of his crime. A criminal unable himself
to pay, and destitute of kin who will, or can, help him,
is deprived of liberty and becomes a slave. His position
is analogous to that of a defaulting debtor on a civil
contract, for in such a society the penalties are founded,
as a French writer of authority remarks, “ not on the
idea of punishment but on that of compensation.” ^
The position of a slave varies greatly among different
peoples. In West Africa, where slavery was known
long before intercourse took place with the peoples of
Europe, it was essential to the equilibrium and pros-
perity of the social system. But it was a very different
thing from that which we arc wont to imagine it. We
may take as typical Baould, a part of the French
possessions of the Ivory Coast, and inhabited by a
branch of the Agui. There the slaves were all aliens
purchased from adjacent countries, and therefore not
likely to receive as good treatment as if they were
fellow-countrymen. Yet we arc told that they “are
treated with the greatest gentleness, and that especially
if they have been bought young and show themselves
docile, they resemble much more the old family servants
of our romances, who make part of the household,
than the word slave — ^that is to say, human cattle —
presents to our eyes. As children they share the food
and the games of their master’s children ; as adolescents
1 Clozel and Villamur, 435.

SANCTION

157

they are only compelled to the small labours in which
their master's children equally take part ; as adults,
if they be women, they help the wives and daughters
of their master in the household work or the lesser work
of the fields, they may marry their master, and in that
event they live on the same footing as the free wives ;
if they wed a slave they are usually sent with their
husband to a plantation, where they build a hut and
dwell with their children, cultivating the soil at once
on their master's and their own account, till the hut
becomes a hamlet, the original couple grow into a
family, and these slaves become in reality farmers.
At other times the adult male slave is employed by his
master in conunerce. If he show himself able in this
capacity he soon receives from the master a kind of
percentage on the returns of his trade ; he may thus
become rich, buy slaves for himself and set up in business
on his own account. The slave who is an expert manual
labourer is left absolutely free, provided he share his
gains .with his master. Finally, a born diplomat who
aids his master with his counsels, rapidly gains his
confidence, and is feared and respected almost equally
with his master." In short, " the slave is a client in
the Roman sense, a servant without wages, but sup-
ported by his master and making part of his family
rather than a veritable slave." " A master speaks of
his slaves as ‘ my sons,’ or ‘ my young men,' or * my
men ’ ; and they speak of him as * my father.’ To be
sure, these slaves have been bought and may be sold
again ; but there are no slave-markets such as our
imagination shudders at. The children of slaves are,
however, inalienable, and their children are free.
Among some tribes, where there are no heirs, a slave

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PRIMITIVE LAW

may succeed to the property of his master. On the
other hand, among other tribes, at the master’s death,
some of his slaves were liable to be slain to accompany
him in the grave. If either of these customs ever was
practised by the Agui they do not appear now to be
part of their jurisprudence.^ The mild character of
slavery about Lunda, lower down on the West Coast,
has been recorded by a Portuguese traveller, who says
that the impression left is rather that of servants than
slaves, for the slaves sit at their master’s table with him,
wear his clothing, carry his weapons, hunt, and have
like him a voice in the decisions of the commonwealth.
Here the child of a slave is reckoned, as among the
Agui, a child of the master ; and a man who had no
other means of livelihood would give himself into
slavery. The ceremony for this purpose was simple.
He had nothing more to do than to break a cup or bowl
belonging to a free man ; he thereupon became his
slave, and might be sold as such to a passing caravan
of traders.* •

The slave-trade on the west coast of Africa was not
originated by Europeans. It was originated and
organized by the natives themselves, and existed before
the discovery on and about the Guinea coast. To such
an extent chd it prevail that not only was the slave-
market large, but also slaves were treated as currency
for the trade in other objects.® Slavery became the
ordinary punishment for various crimes, among which
adultery is said to have been the principal support of

it in Fanti-land.^ Another crime thus commonly
punished was theft. * Captives in war had to submit
to the same fate. To Negroes and Bantu alike on the
west coast of Africa it was a recognized practice, if a man
made default in payment of a fine or a judgment-debt,
that one of his kin might be seized and sold into slavery,
redeemable if ever he had the means. He might give
one or more of his children (or where the line of descent
ran through the mother, as it more commonly does, one
of his sister’s children) into a kind of qualified slavery
as^a pledge for the fulfilment of his obligations, imless
he became, as he frequently did, himself the pawn.
The pawn then worked for certain days as a slave to
the creditor, and the rest on his own account, until he
was able to redeem himself. The law as to the rights of
creditor and debtor and pawn naturally differed among
the various tribes ; but this mode of giving security
is very usual, and men who have lost all by gambling
(a popular vice in the lower culture) often adopt it.®
Somo of these tribes, however, are sufficiently advanced
to deposit goods in pledge for debts, or even to have an
equivalent to our practice of levying an execution on
the debtor’s goods to enforce a judgment.

Slavery, as has often been pointed out, could not have
been literally a primitive custom. It is founded in a
distinction of classes, implies the accumulation of wealth
and in general, though not invariably, is dependent on a
settled rather than a nomadic condition. It has,
however, been a widespread institution, persisting into

a high state of civilization, even to our own day. Africa,
to its misfortune, has been its home and hearth ; but
in many other places it has been deeply rooted. Pro-
bably it began in an amelioration of the practices of
war : a defeated foe ceased to be massacred when it
was found to be more advantageous to give him his life
and employ him as a slave. Out of this would grow the
custom of making raids for the purchase of capturing
slaves. This is well established in the west of Africa.
It existed among the north-western tribes of North
America, and for many ages among various European
peoples. In north-western America there was a regular
traffic in slaves ; but the slaves were usually well
treated; they might even purchase their freedom if
they could raise the means ; sometimes rich men would
free their slaves. On the other hand, a slave had no
rights (he seldom has, especially in the lower culture)
and might consequently be maimed or killed by his
master without the latter being called to account by
anyone. Among the Tlingit, as among the Maori of
New Zealand, it was quite a common thing for a chief
to kill slaves and bury them beneath the supporting
posts of his house in the course of its erection. Some
tribes at least on a chief's death, killed and buried with
him his favourite slaves, as in other parts of the world. ^

In mediaeval Europe slavery was largely practised :
in England it existed almost to the Reformation — at
least in the form of serfdom. Serfs were adscripti
glebes. They could not be sold apart from the land
on which they dwelt and worked, and in which they had

^ These rules are usefully summarized in the ** Handbook
of American Indians, North of Mexico,'* ** Bull. B. E.,** 30, II,
597-600 (art. Slavery," by H. W. Henshaw).

SANCTION

161

rights gradually won from the law — ^rights which de-
scended in the modified form of copyhold tenure to the
present day. Personal slavery, to be sure, was gradually
limited and finally extinguished much sooner. The
laws of Anglo-Saxon kings early frowned on the stealing
of men ; and Cnut, if the code of Winchester attributed
to him may be trusted, definitely forbade the selling
of Christian men into exile or to heathen.^ The Church,
though it never set itself against slavery as such, made
a virtue of the freeing of slaves ; and from time to time
rich slave-owners on their death-beds, when they them-
selves had no further use for them, freed their slaves
with the approval of the Church. It failed, however,
to set the example.

There is yet another sanction in the quiver of the law,
not a supernatural qr corporeal sanction, nor one which
involves the forfeiture of goods or of freedom, but a
very real and serious sanction nevertheless, namely
ridicule and contempt. In a small and intimate
society, ridicule is a very potent weapon ; and the
savage in many such societies is extremely sensitive to
it. The contempt of the community is hard enough to
bear in a society like our own where the victim may per-
haps escape to a different society which does not know
his previous history and does not therefore share the
feeling with which he is regarded at home, and where in
any case there are a thousand other interests to dislocate
and interrupt the attention of his fellows. It is insup-
portable in a society where every one knows every one
else, and where, beyond the provision for the day's needs,
all thoughts and all conversation are fixed upon one's
immediate companions and one's relations with them,
^ Schmid, " Gesetze an Angelsachsen,** 273.

IX

162

PRIMITIVE LAW

and whence there is no escape. In such a society
ridicule and contempt are an effective punishment, from
which every one would be most desirous to be free.
We are told of the Eskimo of Greenland that ** no court
of justice was established as a special authority to
secure the maintenance of the laws. With the exception
of the part which the angakoks, or the relatives of an
offended person, took in inflicting punishment upon the
delinquent, public opinion formed the judgment-seat,
the general punishment consisting in the offenders
being shamed in the eye of the people.”^ The chief
means by which they were brought to book consisted
of satirical songs, frequently called from the ancient
practice of the Scandinavian peoples, nith-songs. These
songs were sung, among others, on festival occasions.
They were used ** for settling all kinds of quarrels and
punishing any sort of crime or breach of public order
or custom, with the exception of those which could
only be expiated by death in shape of the blood-revenge.
If a person had a complaint against another, ha forth-
with composed a song about it and invited his opponent
to meet him, announcing the time and place where he
would sing against him. Generally, and always in
cases of importance, both sides had their assistants,
who, having prepared themselves for this task, could
act their parts if their principals happened to be
exhausted. These songs also were accompanied by
drum-playing and dancing. The cheering or dissent
of the assembly at once represented the judgment as
well as the punishment."* "In these songs," says
Dr. Nansen, " which as a rule were composed before-

^ Rink, ** Tales and Trad./* 32, 33.

2 /Wd., 34.

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168

hand, l)ut were sometimes improvised, they related
all the misdeeds of their opponent and tried in every
possible way to make him ridiculous. The one who
got the audience to laugh most at his jibes or invectives
was the conqueror. Even such serious crimes as
murder were often expiated in this way. It may
appear to us a somewhat mild form of punishment ;
but for this people, with their marked sense of honour,
it was sufficient ; for the worst thing that can happen
to a Greenlander is to be made ridiculous in the eyes
of his fellows, and to be scoffed at by them. It has
even happened that a man has been forced to go into
exile by reason of a defeat in a drum-dance. This
drum-dance is still to be found upon the east coast.
It seems clear that it must be an exceedingly desirable
institution ; and for my part I only wish that it could
be introduced into Europe ; for a quicker and easier
fashion of settling quarrels, and punishing evil-doers
it is difficult to imagine.*' ^

At the opposite end of the habitable globe the Aus-
tralian Blackfellow is equally sensitive to the ridicule
and contempt of his fellows ; and this sensitiveness
is amply used to enforce the law. The excessive
mourning ceremonies, so characteristic of savages,
are specially remarkable among them. Prostrations,
wailing, wounds, severe cuts on their heads with fighting
clubs, painting with pipeclay are usual methods of
expressing the grief of mourners among the Arunta.
They are certainly enforced by the fear of the ghost.
But another and very potent sanction is the attitude
of society to anyone who dares to omit these and the
accompanying ceremonies. We are told that there is

^ Nansen, ** Eskimo Life,** 187.

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PRIMITIVE LAW

nothing to which a Blackfellow is so sensitive as to the
contempt and ridicule to which non-compliance with a
custom such as this will expose him. But it must not
be forgotten that he also fears “ that unless a sufi&cient
amount of grief be displayed he will be harmed by the
offended spirit of the dead man.*' ^

The power of ridicule and contempt as a sanction for
the compliance with tribal law is exemplified abundantly
in savage society. While it is unnecessary to give
further illustrations of it, it is perhaps not unnecessary
to remark that ridicule and contempt may be very often
the essential punishment in many cases where to* us
the penalty seems of obviously another kind. Thus,
the Dacota of North America prohibit the address of
certain relatives by name ; and the punishment for
infringement is stated to have been that the offender
had all his (or her) clothes cut off his (or her) back and
thrown away.* Here it seems clear that much more
serious than the loss of the clothes would be the indignity
and the ridicule of society. ,

Some peoples attach great importance to the con-
fession of any transgression of the law. Among the
Eskimo of Baffin Land and Hudson Bay a breach of
custom can even be atoned for by public confession.
According to Dr. Boas, this has arisen from the infectious
character of a breach of taboo. To prevent the conse-
quences of mingling with others after breaking a taboo,
such as coming into contact with a dead body, or
bleeding, or (if a woman) menstruating, or the conse-
quences of some minor infringement of tribal morality,

^ Spencer and Gillen, " Central Tribes,” 510.

Frazer, ” Totemism and Exogamy,” III, quoting a con-

tribution to Schoolcraft’s ” Indian Tribes.”

SANCTION

165

public announcement of the fact was required to be
made ; and this " has gradually led to the idea that a
transgression, or we might say a sin, can be atoned for
by confession. This is one of the most remarkable
traits among the religious beliefs of the Central Eskimo.
There are innumerable tales of starvation brought about
by the transgression of a taboo. In vain the hunters
try to supply their family with food ; gales and drifting
snow make their endeavours fruitless. Finally, the
help of the angakok [shaman or priest] is invoked, and
he discovers that the cause of the misfortune of the
people is due to the transgression of a taboo. Then
the guilty one is searched for. If he confess, all is
well : the weather moderates, and the seals allow
themselves to be caught ; but if he obstinately main-
tains his innocence, his death alone will soothe the
wrath of the offended deity. ^ Certain tribes of Togo
on the Slave Coast of West Africa hold that marriage
within the same totem-clan is incest ; and it is strictly
forbidden. As such sexual offences are often believed to
do, it causes a drought. When this occurs, the guilty
woman is led first to the market and then to some of
the temples of the gods, and there made to confess her
crime aloud, weeping. ^

Dangers and crises in the individual life, as dis-
tinguished from the life of the community, are fre-
quently only to be got over by confession of trespasses
committed, it may be, years before. Thus it is a
common rule among the Negroes and Bantu that a
woman at confinement is required to confess any
adultery that she may at any time have committed,

1 Boas. ** Bull. Am. Mus. Nat. Hist./’ XV. 120, 121.

“ Anthropos,” VI, 456.

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PRIMITIVE LAW

especially if there be any difiSculty or delay in the birth.
If she deny any adultery, we are explicitly told by the
Anganja about Lake Nyasa and the Thonga of South-
east Africa that she may die ; if she own up and give
the name of the man her fault will be at an end : the
child will be born. Sometimes the husband likewise
is made to confess, lest his wife die.^

In these and other cases the mere act of confession
is held to relieve the wrong-doer, if not of his sin, at
least of the consequences of his guilt. A similar idea,
that of obtaining good luck, followed a curious custom of
the North American tribe of Crows. The night before
sighting the enemy's camp the braves on the warpath
were wont to confess the names of the women with
whom they had had sexual relations. The other men
present, among whom might be the husbands of the
faithless women, were sworn never to reveal the war-
path secret to any woman, on pain of death. The
oath is said to be strictly observed ; but the husband,
if inclined to give trouble, might leave an erring
wife.*

T he administration of law in every organized
community demands a regular and orderly
procedure, both for civil and criminal purposes,
A society destitute of such a procedure to enforce
compliance with its rules or to punish non-compliance
is in a state of chaos : it will be a prey to individual
caprice and brute power. The consent and authority
of the collectivity behind the law are necessary ; and
they can only be given, or at all events evidenced, by
the .punctual observance of the proper forms. This
is so well understood in all civilized countries that a
special branch of the law has been elaborated, called
adjective or auxiliary law, dealing with the kinds of
procedure and the forms and methods to be employed
in the administration of the substantive law. It is not
to be expected that the administration of the law in
savage and barbarous societies shall be surrounded
with all the safeguards and formalities with which we
are familiar. Crude and rough as they may be — as,
indeed, they necessarily are, particularly in the lowest
stages of culture — ^they are nevertheless the forms
recognized for procuring the punishment of infractions
of the tribal law, or for obtaining reparation of wrong.

167

168

PRIMITIVE LAW

Everybody in the society knows what these forms are,
and how they may be invoked.

In the early stages there is no distinction between
civil and criminal procedure. When as yet no wealth
has been accumulated, when property in land, as
distinguished from the right of occupation by the tribe
or its sections, is unknown, when a man's possessions
are merely the rude tools and ornaments which he has
in constant use, the subjects of dispute are confined to
women, to personal affronts, or to violence, or else to
breach of tribal taboos affecting the life of the tribe or
of some section of it. The public is directly affected ; ils
internal peace is imperilled ; and the complaints which
come before the representatives of the community are
in the nature of criminal complaints. As civilization
advances, the forms devised for the ruder stages are
gradually adapted to deal with matters previously
unknown and undistinguished. Procedure for one
purpose is applied to another, because no clear distinc-
tion has yet been perceived between crime and perspnal
questions of right and wrong only affecting very
indirectly the w^ell-being of the community. Default
in payment of a debt is visited with a penalty as great as
robbery or adultery ; and murder is measured by rules
of compensation, as if it were not different in kind,
but only in degree, from a breach of contract or simple
trespass.

Another difference between our law — ^indeed, the
law of all civilized countries — ^and the law of primitive
peoples, which may be briefly noticed here, is that the
latter have no Statute of Limitations. When once a
claim of right has arisen it may lie dormant for any
length of time, it may be pursued after any interval.

PROCEDURE

169

until it has been iBnally decided. The ** primitive "
recognizes no justice in barring his claim by mere lapse
of time or dilatoriness in prosecuting his suit. He
considers that the prosecution of his suit should be left
to his own convenience. Time is not so filled for him
with interests and with labours as it is with us, nor does
he admit the public advantage of fixing a limit within
which his claim must be brought forward and pressed
to a decision, so as to produce confidence in daily life
and the regular intercourse and transactions of his
fellows. Even in the comparatively advanced civiliza-
tion of Passununah and Rejang, two contiguous
districts of Sumatra, where the most respectable form
of marriage depends upon the payment by the bride-
groom of a bride-price, or jujur, to the family of the bride,
long credit is, as we have seen, frequently given.

Sometimes it remains unadjusted to the second and
third generation ; and it is not uncommon to see a man
suing for the jujur of the sister of his grandfather.
Thes^ debts constitute, in fact, the chief part of their
substance ; and a person is esteemed rich who has
several of them due to him for his daughters, sisters,
aunts, and great-aunts." * Among the Nabaloi of Luzon,
it is not unknown to claim payment of debts alleged
to be due to the claimant’s great-great-grandfather.*
The principle of limitation of actions in order to obtain
an end of litigation does not appeal to peoples who are,
as many " primitives " are, fond of litigation. It is
quite modern in jurisprudence. It has not existed in
our own legislation for much more than two centuries
and a half ; and among the more ignorant of our own

^ Marsden, "Sumatra;*' 259.

" Univ. Cal. Pub./’ XV, 257 n.

170

PRIMITIVE LAW

fellow-countrymen it has not yet become popular.
Any practitioner of the law can recall cases within his
own knowledge where it has been defied — ^not of course,
with success, though greatly to the annoyance and
inconvenience of the legitimate holders of property
whom the claimants worried with their attentions.

The Eskimo are doubtless the least quarrelsome
people on earth. It is only human, however, to dis-
agree ; and even they have their disagreements. We
saw in the last chapter how they decided quarrels
and punished the disagreeable members of an Eskimo
community. That highly original method not merely
provided a sanction for their laws, but it is itself, we
are told, a primitive judicial process,'* the popular
verdict of which carries a severe and sufiicient penalty.^
If a man cannot be reached by it, if his conduct be such
as to render him generally obnoxious, there is a more
drastic way of dealing with him, and one that is resorted
to with persons accused of witchcraft (black magic).
To put any man to death in the ordinary wajj is a
breach of order that arouses a blood-feud. But against
a person of this character who has become unbearable,
a consultation of the community is held behind his back, .
he is solemnly condemned to die, and executioners are
told off to put in force the decision arrived at. It is
true the council takes place in his absence and may,
if he have friends who do not agree, lead to a blood-
feud. It is not usually a serious risk. For in most
cases a man fears to make himself disliked, he is con-
scious of the growing alienation of his place-fellows,
and he amends his ways or goes to another settlement
before things are driven too far. If not, his conduct
1 Nansen, " Eskimo Life,*' i86, 187.

PROCEDURE

171

is recognized even by his friends as insufferable, the
proceeding is held to be regular and the sentence just ;
he is “ disposed of by common consent." Incon-
venient angdkut (wizards) are sometimes dealt with in
this manner.^

Equally summary is the procedure sometimes
adopted by the Australian Blackfellows of the south-
western districts of Victoria against a person whose
bad conduct has made him a constant anxiety and
trouble to the tribe. A consultation is held, and he is
put to death.* This seems, however, not to be a
cofnmon occurrence. " Persons accused of wrong-
doing get one month's notice to appear before the
assembled tribes and be tried, on pain of being out-
lawed and killed. When a man has been charged with
an offence, he goes to the meeting armed with two war-
spears, a flat light shield, and a boomerang. If he is
found guilty of a private wrong he is painted white,"
and is required to stand the attacks of the accuser
and his friends first delivered in a body simultaneously
with spears and boomerangs, and if he succeed in
warding them off with his arms (for he appears not to
be allowed to hit back) a shield is handed to him, and
his opponents ^hen attack him successively with one
blow each. " As blood must be spilt to satisfy the
injured party, the trial ends on his being hit. After
the wound has been dressed, all shake hands and are
good friends." ® The neighbouring tribe of the Narrin-
yeri is administered by a tendi for every " clan." The

term clan *' is probably used for a local subdivision
of the tribe. The tendi is the judgment-council of the
elders, who are chosen by the “ clan." It is presided
over by the rupulle^ or chief, chosen by the tendi from
among its own members. “ All offenders are brought
to this tribunal for trial. In case of the sla3dng by a
person or persons of one clan of the member of another
clan in time of peace, the fellow-clansmen of the mur-
dered man will send to the friends of the murderer and
invite them to bring him to trial before the united
tendies. If, after full inquiry, he is found to have
committed the crime, he will be punished according
to the degree of guilt. If it were a case of murder with
malice aforethought he would be handed over to his
own clan, to be put to death by spearing. If it should
be what we call manslaughter, he would receive a good
thrashing, or be banished from his clan, or be compelled
to go to his mother's relations. All cases of infraction
of law or custom were tried thus. A common sentence
for any public offence was so many blows on the Jiead.

A man was compelled to hold his head down to receive
the stroke of the waddy, and would be felled like a
bullock, then get up and take another and another, until •
it was a wonder how it was that his skull was not
fractured." ^

Of the Iroquois of North America we are told :

" Crimes and offences were so infrequent under their
social system, that the Iroquois can scarcely be said
to have had a criminal code. Yet there were certain
misdemeanours which fell under the judicial cog-
nizance of the sachems (chiefs), and were punished by

them in proportion to their magnitude. Witchcraft
was punishable with death. Any person could take
the life of a witch when discovered in the act. If this
was not done, a council was called and the witch
arraigned before it, in the presence of the accuser. A
full confession, with promise of amendment, secured
a discharge. But if the accusation was denied, wit-
nesses were called and examined concerning the circum-
stances of the case ; and if they established the charge,
which they rarely failed to do, condemnation followed,
with a sentence of death. After the decision of the
coimcil the relatives of the witch gave him up to his
doom without a murmur. Adultery was punished by
whipping ; but the punishment was inflicted upon
the woman alone, who was supposed to be the only
offender. A council passed upon the question ; and
if the charge was sustained, they ordered her to be
publicly whipped by persons appointed for the
purpose.’* ^

After discussing the procedure in cases of murder,
which did not materially differ from that of most
uncivilized peoples to be referred to further on, Lewis H.
Morgan, the eminent American anthropologist whom
I am quoting, goes on : Theft, the most despicable
of human crimes, was scarcely known among them. . . .
No locks, or bolts, or private repositories were ever
necessary for the protection of property among them-
selves. The lash of public indignation, the severest
punishment known to the red man, was the only penalty
attached to this dereliction from the path of integrity.** *
There hardly seems to have been any civil procedure

'Morgan, "League,” I, 321.

Ibid., 324.

174

PRIMITIVE LAW

as distinguished from the procedure just outlined;
probably there were in tact few individual quarrels
serious enough to come before a tribunal. Quarrels
between houses or clans would come before the council,
like charges of witchcraft or adultery.

Among the Toradjas of Mid-Celebes, a people less
primitive, and certainly more litigious than the
Iroquois, a different procedure is adopted. Fully
weaponed, but with precautions for the maintenance of
peace, the plaintiff and defendant, as they may be
called, first seek an opportunity of meeting on neutral
ground and talking the matter over, through the
medium of two young men belonging to neither party
but skilled in argument and repartee. This sometimes
results in agreement and termination of the dispute.^
If not, as is more usually the case, a step farther is
taken. Recourse is made to an oath. An oath is,
not only in Celebes but elsewhere, an appeal to the
higher powers for the truth of what the swearer says,
and a curse invoked upon himself if it be not the ^truth
or if he fail to perform what he promises by it. It is
thus expressed by the Toradja : " Hear, ye gods who
are above and who are beneath ! If it be not true
what I now say I shall eat no rice or maize this year,
I shall be crushed by a falling tree, I shall be eaten by
crocodiles, I shall be ruined, or slain by men.*' When
the defendant has taken such an oath as this the accuser
who is not quite sure of his case is silent ; an oath to
the contrary is not taken. Instead, if he be sure, he
presses for an ordeal, or demands a more stringent oath
to be taken, to this effect : 0 gods above and beneath,

if I be in the wrong or speak untruth, may I within
1 Adriani en Krujrt, I, 170.

PROCEDURE

176

one month [or some other period] fall suddenly sick, or
let some misfortune happen to me ! ” This fixes a
definite term for the punishment. If that term run out
before the mischief called down from the gods has
overtaken the swearer, it is a clear proof that his
opponent has laid a false charge against him.^

The ordeal has been abolished by the Dutch Govern-
ment, which is now supreme in Celebes. But formerly
it was an alternative to the peremptory oath just
described. By the issue of the ordeal the gods them-
selves were held to show on which side the right was ;
and it was decisive The ordeals were three in number.
The first was only applied to persons accused of witch-
craft, among whom were reckoned those accused of
being werwolves. A quantity of resin was melted
in a pot until it boiled. The accused was brought, an
offering of sirih-pinang was made and the gods were
invoked to manifest his guilt or innocence. His right
hand, except the middle finger, having been enveloped
in leaves, the middle finger was put into the boiling
resin for an instant. The resin that adhered to it was
allowed to grow cold and harden. When it was removed
if the finger did not appear burnt it was a certain proof
that the accused was no werwolf or witch : otherwise
his guilt was clear, he was taken to a lonely spot and
hacked to death. The executioners were always men
of another tribe, who took away the skuU ; for aU these
peoples were head-hunters.* A second ordeal was that
of s^ars. It consisted in a contest between the two
parties, which was performed in various ways. The
most ancient took place on a piece of ground carefully
cleaned of grass. The two parties being set on opposite

Ibid., I, J73. 1 Ibid., i, 175 , 259.

176 PRIMITIVE LAW

sides the issue was declared, and the gods invoked to
show the truth. The champions being provided with
a number of light spears or laths of komboeno-palm,
first one side and then the other thrust their weapons
into the ground. When all had finished the side which
was found to have thrust its spears most deeply into the
earth won its cause. ^ A third ordeal, less used than
that of the spears, was that of diving. A piece of water
was chosen, not infested with crocodiles, and two
stakes were driven into the bottom. The contesting
parties, or their two champions, dived to these stakes
and took hold of them. He who could remain imder
water the longer was successful. The chief of the
village is generally called in by one side or the other ;
he endeavours to settle the dispute by agreement ; in
default he presides at the ordeal. A false accusation
entails a fine.*

Among the Negroes and Bantu of Africa the public
trial of disputes and accusations of crime has been
carried to a point more nearly approaching the practice
of civilized nations than that of any other people in the
lower culture. The negro has a keen sense of justice,
a passion for oratory, the gift of eloquence, and the
power of shrewd cross-examination ; and the natives
enjoy the dramatic exhibition involved in a “ palaver.”
What a British official says of the courts of the Mendi
of West Africa (continued under the British protec-
torate) is true in general terms of those both of Negroes
and Bantu throughout the continent. ” The Mendi
court, when presided over by conscientious judges, has
not only immense power in the country, but is capable
of unravelling matters and arriving at the real facts of
1 Ibid,, I, 175. * Ibid,, I, 177.

PROCEDURE

177

a case, where the white man might utterly fail. In
spite of their primitive simplicity the natives have the
means not only of almost compelling witnesses to speak
the truth, but of arriving at a more or less correct
conclusion as to who is prevaricating and who is com-
mitting perjury." And of the native judges of these
courts he says : " It is surprising to see with what
patience the judges listen to all the facts, how
thoroughly matters are thrashed out, and how ingenious
the people often are in their prosecution and defence." ^
It piay be thought that in these special instances the
virtues and success of the native courts are due to the
knowledge that the eye of the British Government is
upon them, and that an appeal will lie in suitable cases
to a British tribunal. But we may be sure that all
these characteristics have been built up through many
generations of native practice during the long period
when they w'ere guided only by their own moral
sense, their own institutions, and knowledge that
the critical eyes of their fellow-countrymen were upon
them.

The same observations apply to the Bantu as to the
Negro proper ; the courts are similarly constituted,
and though there are variations between them and
between the procedure of different tribes, these are
comparatively small, and one description will suffice.
As elsewhere, there is little or no difference between
civil and criminal procedure, except when witchcraft
is charged. Witchcraft is a crime which calls forth the
strongest feeling of terror and passion ; and the accused
is sometimes put to torture and always to the ordeal,

usually with fatal results/’ ^ “ I will not pretend/*
says Mr. Junod, "that the Thonga [a Bantu tribe
of the south-east] exactly know the difference between
civil and criminal cases, the same tribunal judging
them both, and all being called by the same name —
milandju. If any distinction is made, it would be
between private and official cases : private cases being
those which are settled by the two parties concerned
alone, without the intervention of the chief ; whilst
official cases are those in which the matter has been
brought to the capital/* ^ In the year 1880 the Govern-
ment of Cape Colony appointed a strong commission
to inquire among other things into the native laws and
customs which obtained in the territory annexed to the
Colony. The commission took a large quantity of
evidence and finally reported in the year 1883. Most
of the witnesses spoke in evident admiration of the pro-
cedure, one of them saying : " The law-suits are con-
ducted quite as decorously as any I have seen in our
courts. Disturbances are not tolerated.**® lu one
respect it departs, however, from British law — ^resem-
bling therein the German law, as one of the witnesses,
himself a German, points out — ^in that every accused in •
a criminal case is regarded as guilty until he has proved
his innocence. But it is fair to say that full latitude,
except in cases of witchcraft, is allowed the accused
to do this.^

The case is commenced by a formal complaint by an

1 Post, ** Afr. Jurispr.,” II, 98.

Junod, ** S. A. Tribe,” I, 412 ; Cf. ** Nat, Laws Com.,”

App. C, 182, 183, 196, 205, 206.

® ” Nat. Laws Com.,” Evid., 158.

^ Ihid,t App. B, 18 ; App, C, 144 ; Smith and Dale, I,
354 -

PROCEDURE

1T9

aggrieved person to the chief or his council, whereupon
a day is fixed for the hearing and a messenger is dis-
patched with the insignia of authority and a summons
to the defendant and the witnesses to appear on the
appointed day. The court is held at the kraal of the
chief or an under-chief in the public courtyard, or on
the open space in front. The chief or under-chief and
his councillors sit in a semicircle,^ the parties and their
advocates and friends opposite one another a little
distance away. The witnesses, including the com-
plainant and defendant, or accuser and accused, having
been solemnly warned to speak the truth, tell their
stories one after another in order and are subjected to
severe cross-examination by the members of the
tribunal ; all arguments are listened to when offered
by the advocates and friends of the parties, often at a
wearisome length. When they are finished the chief and
his council retire to consider their judgment. Each
councillor gives his opinion ; and the chief, who does
not 'always utter his own, but contents himself with
taking the advice of his council, delivers the verdict
of the court and the judgment upon the accused. Often
however the result of the trial is that the defendant or
the accused has nothing more to say. That he is in the
wrong is so patent that he can only confess and throw
himself on the mercy of the court ; or the plaintiff
or accuser may find himself in the equivalent position.
There is generally an appeal from an under-chief and his
council to. his superior chief. The fines or moneys

^ Among some tribes, as the Gaika in the extreme south,
criminal cases are tried by the chief alone, in which he is judge,
accuser, and prosecutor in one. But such a practice is a rare
exception. “Nat. Laws Com./’ App. C, 144.

180

PRIMITIVE LAW

adjudged are levied by the chief, or paid to him. He
distributes them to the members of the court, retaining,
of course, the lion’s share, and pays the plaintiff
the amount due to him, first deducting his own
share. Thus the costs of the palaver are provided
for.^

This may be described as the general procedure of
Negroes and Bantu, in what we should call both civil
and criminal cases.

Of the variations to which I have referred I may
mention three. Among the Ba-ila of Central Africa,
a Bantu tribe, there is a class of cases that evoke much
resentment. These cases do not infringe any taboo
strictly so called, but they are personal wrongs which
appear thought to involve insults, though directed not
always against the person of the wronged, but against
his property, or even it may be unintentional. They are
called buditazhi, a word derived from a verb meaning
to enslave oneself. Such a wrong places the person who
commits it in the power of the person wronged, '‘and
to escape he must redeem himself or be redeemed by
his clan. Accordingly the first step in the legal process
is to seize the offender or a member of his household,
or of his clan, as a slave and hold him to redemption.
Negotiations ensue with the view of reducing the claim
by the person originally wronged — a claim frequently,
if not usually, extortionate and liable to be complicated
and aggravated by subsequent events and lawless pro-
ceedings on both sides. Ultimately, if the negotiations
fail, the matter has to be settled by a judicial palaver ” ;

or the person seized remains a slave and may form an
item in a long list of wrongs involving a number of
innocent as well as guilty parties in a fine juridical
tangle, passing the wit of anybody to unravel but the
most astute native chief reared in the eager and stimu-
lating atmosphere of such disputes.^

Among the southern Kikuyu, a Bantu tribe on the
slopes of Mount Kenya in British East Africa, the
plaintiff, as he may be called, entertains two elders
with njohi, a drink made from sugar-cane, and com-
missions them to collect his debt from the debtor. If
when they visit the latter he agree to pay, they bring
back the stock claimed to the plaintiff's village and there
enjoy a further supply of njohi. If on the other hand he
repudiate the claim or refuse to pay, two other elders
are sent to summon the defendant, his witnesses and
assessors, and to bring the sheep necessary for court-
fees, each party having to pay to the elders fees from
one ram upwards to four sheep, according to the amount
of* the debt or claim. The court consists of a council
of three or four elders or assessors chosen by the plain-
tiff and an equal number chosen by the defendant,
apparently without a president. It sits in public on
an open grass-plot near the village ; and the onus of
proof lies on the plaintiff. Having heard and closely
examined both parties and their witnesses, its members
retire to an adjacent spot in the bush to discuss their
decision, and incidentally kill, cook, and devour the
court-fees. When this is done, and a decision has been
arrived at, they return to the place where they had been
sitting and deliver judgment before the parties and their
friends and spectators, announcing the day when two
^ Smith and Dale, I, 346, 39^-395. 401-405.

182 PRIMITIVE LAW

of the elders will go to enforce it. If the unsuccessful
litigant hand over the sheep or stock awarded, these
two elders will return with two elders of the other
village to consume a goat paid by the successful party ;
and the affair is ended. If, however, the beaten
litigant refuse to obey the order of the court, the elders
who formed it come and with pieces of a certain plant
sweep a public path in sight of the debtor's hut, saying :

May they (i.e. the goats or stock decreed) be stolen I "
The following night the successful party is at liberty
to steal if he can the property he claims and congratu»
late the elders on the success of their ceremony. The
ultimate appeal, before the British occupation, was
to arms when the matter could not otherwise be
settled.

On the west side of the continent the cannibal Fang
or Fans, a Bantu tribe that has for many years been
pressing down to the coast between the Ogowe River
and the Cameroons, have a remarkable way of com-
mencing a “ palaver." Miss Kingsley, who describes
herself in this connexion as " a wandering student of
early law," gives in her amusing way an example of
its application. She says : " Passing down a branch
of the Karkola River in the Oroungou country in a
canoe with a choice band of natives for crew, we sud-
denly came upon a gentleman on the bank who equally
suddenly gave several dismal howls, and fired at us with
the scatter-gun prevalent in West Africa." At once
the authoress boldly jumped on the bank, and on the
man fleeing, pursued and caught him before he could
reload. " We found the poor man was merely suffering
under domestic affliction. One of his wives had run
away with a gentleman from a neighbouring village.

PROCEDURE

188

and so he had been driven to fire at and attempt to kill
a member of any canoe-crew from yet another village
that might pass his way; because, according to the
custom of the coimtry, the men of this village would
thereby have to join him in attacking the village of
the man who had stolen his wife/* ^ An example given
by another writer presents a more complete idea of
this curious juridical process. " A Fang of the Esisis
clan steals goods or a woman from a Fang of the Nge
clan. The Nge who has been wronged does not go to
the offender for settlement ; he goes to another near
town and shoots the first goat he sees in the street, or
if very angry he may shoot a woman. The owner of
the goat or woman demands of the Nge his reason for
doing so. The Nge replies : ' An Esisis (giving the
man*s name) has wronged me ; I put the palaver
(his offence) on you.* The third party then goes to
the Esisis and says : * An Nge (giving the man’s name)
has shot my goat (or woman) because you have made
trcwble with him ; he has put your palaver (trouble) on
me. You must pay me ! * The original dffender is
now responsible and liable to two parties. If he is
reasonable they all meet and talk the palaver. If the
palaver is serious, such party appoints his nt6l (ambas-
sadors). The palaver is usually talked in the main
street of the town, before all the representatives of
the interested clans, and before all strangers in town.
The Fang are born orators, and remarkable gestures
and orations are made while talking the palaver. The
speaker usually walks backwards and forwards, grasping
and leaning upon a 'palaver-stick.* . . . Sometimes
the ntdls (ambassadors) sit in a canoe in the middle of
Mntroduction to R, E, Dennett’s “ F. L. of the Fjort,” III,^iv.

184

PRIMITIVE LAW

a river or stream and talk the palaver, the injured
parties [rather, the parties to the quarrel] being on
either side of the stream. The case is talked, the goods
demanded in payment stated, and an effort made to
kik nsang (cut or end the palaver). If they succeed,
then the palaver is cut (ended), and a dance follows ;
if no agreement is come to, the meeting breaks up and
a tribal war exists between these clans.'" ^

From this description several things appear. The
Fans, a pugnacious tribe, have no judges and no
strictly judicial process ; the ntdls, or ambassadors^
are intermediaries appointed ad hoc for the purpose of
trying to reconcile the parties, to induce them to agree
upon a proper expiation of the wrong, and so of avoid-
ing the else inevitable result of the quarrel — a war
between the clans involved. For here, as elsewhere,
the clans act with solidarity. It is with intent to
involve a third clan, and so to present an overmastering
force that the injured party brings another into the
dispute : the original wrong-doer then finds himself
confronted not only with the party he has wronged,
but with a third ; and he knows that, if in the ensuing
palaver he fail to satisfy them both, he runs the certain
risk of open war by two clans with public opinion
behind them against his own clan. He has therefore
a very strong motive for coming to terms ; and it
usually prevails. The procedure, though not judicial,
is conducted in accordance with legal and well-under-
stood forms ; it is regular and effective for the purpose
of peaceably settling domestic disputes which would

Another method of recovering the payment of a debt
or claim — a method which cannot be described as a
judicial proceeding, but yet is recognized as according
to law and perfectly regular — ^is practised by the Fanti
of the Gold Coast. It consists in the creditor or claimant
going early in the morning to his debtor's residence,
or the place where he usually follows his occupation.
Covered with white clay, or in sackcloth and ashes,
he, seats himself on a mat, or on the bare ground, with
a supply of food enough for a single meal. “ He
informs the debtor that unless the debt is paid to the
last farthing he will not go away ; and if the debtor
goes out this creditor follows him everywhere. Instances
are known where, the debt not having been paid, the
creditor has died of starvation. Sometimes, as the day
draws to a close, the creditor swears to commit suicide
if the debt be not paid before sunset. If in such a case
the debt be not paid, and the creditor doth commit
suicide, the debtor is bound to bear the funeral expenses,
in addition to paying the original debt and making
substantial compensation to the family of the deceased
creditor. But when the creditor swears that, if by a
certain time the debt be not paid, he and the debtor
must both forfeit their lives, the debtor cannot save his
life by simply pa5dng the debt, and a compensation :
he too must take away his life." *

A like proceeding is ancient and well known in Hindu

^ Compare the proceeding among the Melanesians of New
Britain for involving a chief in the quarrel and so compelling
his interference, Brown, ** Mel. and Pol.,” 253, 298, 300.

Sarbah, ” Fanti Cust. Laws,” 94, 95.

186

PRIMITIVE LAW

law. It is not, to be sure, mentioned by Manu the
reputed author of the oldest Hindu code, but it may
be referred to under the cryptic expression of "the
customary proceeding." ^ It is, however, mentioned,
though without details by his early follower Brihaspati,
who says : " When (a debtor) has acknowledged a
debt, it may be recovered from him by the expedients,
of friendly expostulation and the rest, by moral suasion,
by artful management and by confinement at his house."
And he immediately goes on to explain : " When a
debtor is caused to pay by the advice of friends .or
kinsmen, by friendly remonstrances, by constant
following, or by (the creditor) starving himself to death,
it is termed moral suasion." * In India this proceeding
of sitting Dhar}f{a, as it was called, probably owed its
origin to the Brahmans, in whose hands it would be
a most potent weapon to bring to book a recalcitrant
debtor. For the person of a Brahman was sacred, and
to cause his death would be to draw down upon the
debtor's head spiritual penalties of an awful kind.%

An analogous step was also known to the Brehon
law of ancient Ireland. A common mode of recovery
of a debt in Ireland was by distress. But before dis-
training, the creditor was obliged to issue an order upon
his debtor to pay. Irish etiquette, however, forbade
the issue of an order upon persons who were regarded
as nemed, sacred. In this category were included not
only kings and nobles, but also learned men, clergy,
story-tellers, poets, lawyers, warriors of the higher
grades, and even expert smiths or carpenters ; for
these craftsmen were looked upon with awe for their

1 Manu, VIII, 49 ; " Sac. Bks.,** XXV, 202.

> Brihaspati, XI, 34, 55 ; “ Sac. Bks.,” XXXIII, 329, 330.

PROCEDURE

187

skill. Accordingly, instead of addressing an order to
a debtor belonging to these classes, the creditor went
himself and fasted before his door until he paid or gave
security for the debt. It was the debtor's duty to offer
his creditor food. If he did not pay or give security, the
debt was doubled, additional cattle were due for interest,
<ind beyond that he was struck with a sort of curse.
On the other hand, if the creditor refused suitable
offers by his debtor and still fasted, he lost his debt.^
The practice of fasting on a debtor, barbarous as we
may well think it, was recognized by law and was the
product of civilizations that cannot without the misuse
of words be properly described as " primitive,"
though still in a comparatively undeveloped social
condition.

It does not seem that evidence is, either among the
Bantu or the West African Negroes, ordinarily given
on oath. Nor does any disgrace attach to false evi-
dence, though sometimes it may be punished by the
chief •with a fine or a beating. It is regarded, we are
told, very much as we should regard the clever but
misleading speech of an advocate. Such a witness is
doing his best for his friend.* Oaths are, however, taken
by the litigants themselves when the case is too knotty
for the court to unravel, as well as by others in extra-

judicial ceremonies and proceedings. An oath is of

the nature of an ordeal. A curse is invoked by the
litigant, who swears if he be in the wrong, or by the
accused if he be guilty. If he escape the doom thus

conditionally invoked he is held, as among the Toradjas
and many other peoples, to be in the right — ^he has won
his litigation, he is innocent. When the Giku3m Council
of Elders order the litigants to take an oath because
they cannot settle the case, refusal of it by either party
decides the dispute against him. Some of the African
oaths involve elaborate and complicated ceremonies.
A form given by Mr. Tate, a District Commissioner
among the Gikuyu, as applicable to a claim of goats,
provides that the parties sit on the ground opposite to
one another with their legs intercrossed. In a hollow
made in each of two portions of a banana-skin laid
between them the blood of a goat is put, while portions
of the flesh and entrails, cut into bits, are kept ready at
hand. An Elder takes a little of the meat and dipping
it into the blood touches the defendant with it, and gives
it to the plaintiff, who eats it saying : “ Goats mine,
you are with them ; may I be eaten by this oath, you
not being with them I " The defendant in his turn,
eating a similar portion given him by the Elder replies :

I have not your goats ; may I be eaten by this oath

if I am with them ! " The operation is repeated,
plaintiff retorting : " Because you have my goats, if
you reach three seasons without having died, may I
be eaten by this oath ! ” and the defendant returning :
“ If I die in three seasons you shall be repaid your goats
by my children." If then the defendant die within
three seasons he is held to have owed him the goats ;
and his heir pays the debt. Otherwise the claim fails. ^
It is apparent that the oath is regarded as a species of
ordeal involving the death by supernatural power of
the party swearing falsely.

^ " Journ. Air. Soc.,*’ IX, 250.

PROCEDURE

189

On the other side of the continent among the Negroes
of Calabar, a ju-ju, or magical drink called mhiam,
is administered. The mbiam is not poisonous, but the
oath which accompanies it is the most dreaded, and
consequently the most respected, of all oaths. Miss
Kingsley gives at length its terms as applied to an
accusation of witchcraft causing sickness. Before
swallowing the drink, which is made of " filth and
blood," the accused pronounces a formula denying in
precise terms the guilt of causing the illness, or seeking
or* employing another to cause hurt to the sick man, or
making charms, or doing any act of witchcraft, or
thinking of it, and winding up with the curse if he have
been guilty of any of these things : " Then, Mbiam,
Thou deal with me I " She explains that the formula
is modified to suit other accusations, but in any case
is similarly precise and exhaustive in its expressions.*

What we generally know as the ordeal is the cere-
monial taking of a poison, or the doing of some act
calculated to cause permanent or deadly injury, which
is believed only to have effect in case the person who
submits to the ordeal is guilty. It is preceded by a
solemn inprecation pronounced on himself by the
accused, and is made use of all over Africa in deciding
various difficult juridical questions — ^in accusations of
witchcraft invariably. The most familiar ordeal is that
of poison made from a plant, different among different
tribes according to climate and environment, and is
so firmly believed in by the natives that they take it
willingly, and whole villages have been known to sub-

mit to it in a vague charge of witchcraft — ^perhaps no
more than what we should regard as spiteful vitupera-
tion. The whole atmosphere is in fact thick with the
terror of witchcraft, and every native is eager to rid
himself of the suspicion, notwithstanding he knows
that in nine cases out of ten the ordeal is a sentence of
death. The overwhelming preponderance of fatalities
only confirms him to his obsession by the proof it
seems to provide of the public danger from the un-
suspected number of persons who are guilty of such
malpractices. Other ordeals are also used in varidus
accusations as a last resource to determine the question
of innocence or guilt. The ordeals of hot iron and
boiling water were well known to the Europe of past
generations. A form of the latter ordeal is thus de-
scribed by Mr. T. J. AUdridge, District Commissioner
on the West Coast, as practised in the district of Sherbro,
in the Crown Colony of Sierra Leone : ‘'A three-legged
iron cauldron is filled with palm-oil and boiled on the
fire. Three small iron rings are put into it, a conccfction
of herbs and leaves is made up and placed in a basin
beside it. This concoction is oily. The medicine man
takes some of the mixture and rubs it over the right
hand of the person who is about to go through the
ordeal, who then has to thrust it into the boiling oil
and remove one of the rings. If he be successful
he is then requested to put it into his mouth;
and if it does not burn his mouth, he is declared to
be innocent. If unable to do this without getting burnt
he is pronounced guilty, and he is then taken to the hani
where the native court determines his punishment." ^

' AUdridge, i6i. For another form of the hot-water test and
one of the poison test, see Smith and Dale, 1, 356, 357.

PROCEDURE

191

The ordeal has been used all over the world. It was
recognized in early Hindu law, and various kinds were
prescribed according to the caste of the accused. That
of boiling oil was similar to the one just described. It
was used in Madura as late as in 1813. Another ordeal
— that of weighing — ^is still resorted to in Malabar as
a mode of deciding cases connected with caste. Else-
where in India sundry ordeals are still made use of
for juridical and other purposes.^ In Europe the ordeal
was familiar until the end of the Middle Ages — and later
ii> witchcraft cases. The person — ^most frequently a
woman — accused of being a witch was tested by being
thrown, bound hand and foot, into a pool of water.
Witches were supposed to have renounced their baptism.
In that case it was believed that the element of water
would not receive them into its bosom. They floated,
and were therefore condemned. If, however, they sank
they were innocent, but were drowned. The ordeal of
water was therefore a most ingeniously contrived and
satisfactory means, if not of determining the question
of guilt, at all events of getting rid of the accused. It
need hardly be said that the ordeal in this as in other
matters had the full sanction of the Church. The
wager of battle, a judicial duel, was looked upon as a
direct appeal to the judgment of heaven. It practi-
cally disappeared everywhere at the close of the Middle
Ages, but it was suddenly claimed in England in the year
1818 by a man who was accused of murder ; and as it had
never been formally abolished he succeeded. Thereupon
an Act of Parliament was passed to put an end to it.*

^ Crooke, “ Things Indian," 355.

A detailed discussion of the ordeal and its various forms will

be found in the series of articles on the subject in the *' Encyclo-
paedia of Religion and Ethics," IX, 507 sqq.

192

PRIMITIVE LAW

The solidarity of the kin and the principle of collec-
tive responsibility have been already discussed. That
collective responsibility should be found all over Africa
is what might be expected. The chief wealth of many
of the Bantu peoples consists in cattle ; and cattle are
naturally the object of raids and the subject of frequent
thefts. In such a case it is the owner’s endeavour to
follow their spoor, or footmarks, and so to trace their
destination. The law recognizes this custom and
gives effect to the evidence thus obtained. Indeed,
the British in South Africa have extended its appli-
cation in order to protect the property of colonists.
The native law requires the owners of the stolen property
to follow the spoor whithersoever it goes. When it
approaches within a short distance of a kraal they
inform the people of the kraal, who are bound to assist
in passing it on beyond their kraal to about the same
distance. If they refuse to assist, and the owners
cannot succeed in tracing it any farther, the people of
the kraal are collectively considered as guilty of* the
robbery, and the charge is at once laid against them.
It is not necessary to identify the thief himself, nor even
that he should be known. It is sufficient if a prima
facie case has been clearly established against a kraal.
Indeed, if the thief himself is discovered, and found
guilty by judicial proceedings, the fine imposed on him
is made up by his kin.'

Precisely the same rule of tracing the guilt of the
stealing of cattle was applied a thousand years ago in
England by our Anglo-Saxon forefathers. The laws
of King Athelstan lay it down that if a man who has

lost cattle trace their spoor, or footmarks, into the land
of another, the owner of the land must trace it beyond
his land if he can ; if he cannot, the spoor is to be
conclusive evidence against him. Here, however, there
is no question of collective responsibility; Anglo-
Saxon civilization had outgrown that ; but the owner
of the land was made liable for the misdemeanours of
his dependants.^

In the most archaic stage of culture the best guarantee
of the maintenance of the peace is afforded by the
folidarity of the kin. For, since an offence by or against
one member of the kin is looked upon as by or against
all, the whole kin on each side is involved, kin is ranged
against kin, and a state of warfare is instituted which
even the most barbarous and pugnacious of savage may
not regard unmoved, and in which a kin that is not
very powerful may find itself at the mercy of an angry
and relentless foe. The strongest motives are there-
fore offered to avoid all cause of offence. Moreover,
when such a blood-feud has begun, it may end in one
or the other kin being wiped out, and in any case it
must result in a serious weakening of the community,
which will therefore become the less able to make head
against its alien foes. The mischief is early perceived,
and efforts are frequently made to induce both sides
to reconciliation. In this we may perhaps recognize
the first step towards the substitution of law for conflict
and revenge. The reconciliation thus effected inform-
ally by the efforts of influential individuals or the
intervention of the tribe becomes more and more the
ajflair of the community. In general assembly or
through its chiefs and elders the comhiunity gradually
1 Schmid, 155.

3

194

PRIMITIVE LAW

gains arbitral, and ultimately judicial, authority. All
sorts of complaints and charges gravitate more and
more to the tribunal thus established. Serious offences
are treated less and less as grounds of quarrel between
kindreds (families or clans), and more and more as
crimes against the entire community. The blood-
feud gives way to the general sense of the society;
and the kin is compelled to postpone its revenge and
submit its claims to the authority, whether that
authority be embodied in a general assembly, or in a
court of the chief only, or of the cjiief with the assist-
ance of his councillors. This surrender of the right to
vengeance is a triumph for law and an upward step
towards civilization. At first yielded only by moral
compulsion, it ultimately becomes part of the legal
system.

The process, however, is slow ; and, inasmuch as it is
dependent on the circumstances of the people in which
it appears, and as the circumstances of no two peoples
are exactly alike, and the external influences to which
they are subjected differ from tribe to tribe and from
community to community, it is irregular, and the degree
of civilization and the manner in which it permeates
the life of the community vary from one to another.
We must never make the mistake of deeming the
evolution of civilization as a single and uninterrupted
march. The exact course taken by the civilization of
any people is the result of its circumstances, of the
influences brought to bear upon it, and of the subjects
to which from age to age its attention is directed, as
well as of its original proclivities. Thus the Ifugao of
Luzon — a Malayan people which penetrated the Philip-
pines many centuries ago, and now dwell, on the whole

PROCEDUBE

195

a peaceable folk, on the sides and in the valleys of steep
mountain-ranges which they have delved and terraced
out with consummate art and infinite patience for , the
cultivation of rice and other vegetables, for they are
above all an agricultural people — ^have never been
driven by stress of war, or the pressure of adjacent
populations, to a high state of organization. In fact,
the only effective institution among them is the kin.
There is no tribunal representing the entire community,
consequently society cannot punish injuries to itself, save
in so far as the censure of public opinion is a punish-
ment. In kinship, however, they have taken several
steps in advance of “ primitive ** culture. They have
abandoned the clan, if they ever possessed it, for the
clan is unknown to Ifugao law : the organization is
by families, as already described (p. 2i sqq.) ; and descent
is now reckoned to include both parents among their
ancestors. The Ifugao claim that much of their custo-
mary law and procedure was given them by Lidum,
th^ir great teacher, a deity of the sky-world and an
uncle of their hero-ancestor, Balitok. Unfortunately
the authority to which we are indebted for a knowledge
of Ifugao law omits to delineate the procedure. We
can only conjecture that it began by a consultation of
the members of the aggrieved family, in which the
amount to be demanded of the other side was agreed
upon, and it was followed by a formal demand upon the
offending family. In such a demand success was obtained
by bluff, by cajolery, or by negotiation, or else the claim
was finally repudiated. But repudiation if persisted
in would lead, unless the claim were abandoned, to
open war between the families, and probably a series
of head-hunting raids, resulting in a blood-feud, unless

196

PRIMITIVE LAW

the intervention of other families, or of influential but
unauthorized and unofificial individuals, dreading the
consequences of a blood-feud, led to a reopening of
negotiations and the ultimate conclusion of peace.
But it would seem that the constitution of the Ifugao
family claiming both lines of descent must tend to
make responsibility more individual than where the
family descends wholly from one stock. For in carrying
out the principle that the family unity must at all
hazards be preserved, regard must be had to the personal
position of different members of a family. In a family
thus constituted members may belong also morq or
less nearly to the other family at strife. This will be a
very important consideration affecting the enthusiasm
with which such a member will enter into the
quarrel. Allowance will have to be made for his near-
ness or remoteness of blood to the relative primarily
concerned, the loyalty of the latter to the family group
and his consequent popularity in it, and the responsi-
bility or advantage of each member measured according
to his nearness in blood to, or remoteness from, the
actual aggressor, or other relative primarily concerned
— ^matters generally of small importance in a dispute
between two clearly defined groups. The collective
responsibility of the family extends the liability to
punishment to other individuals than the person
chiefly concerned, but Ifugao law is careful to dis-
tinguish who are, and who are not, liable to the punish-
ment as a part of the collectivity. It is preferred to
let its weight fall on the actual aggressor. But this
is not necessary, though it is definitely laid down that
only those that are of the nearest degree of kinship
may be held responsible. Hius cousins may not be

PROCEDURE

197

legally punished if there be brothers and sisters of the
actual aggressor. With regard to the payment of
damages, it is said that " no Ifugao would dream of
taking payment for the deliberate or intentional murder
of a kinsman. He would be universally condemned
if he did so. He would usually accept a payment for
an accidental taking of life. There is still however an
element of doubt as to whether even in such a case
payment would be accepted. For nearly all other
offences payments are accepted.** ^

It must be clear that if the Ifugao have not devised
a legal machinery for the administration of justice, at
least they have risen in many respects to a compara-
tively high degree of civilized feeling in their attitude
towards offences and offenders.

But, returning to the general course of the evolution
sketched above, inasmuch as there is yet no distinction
between civil and criminal procedure, and punishment
is measured in terms of compensation to the party
injured, the complainant in a case of murder or man-
slaughter is the whole kin of the deceased. Compensa-
tion must be obtained by reducing the kin of the slayer
by the same number by which the kin of the slain has
been reduced, or a payment must be made to the latter
in currency or other goods. Compensation by payment
for a death thus becomes common in all barbarous
jurisprudence. It is embodied in all the codes of the
kingdoms which were founded on the ruins of the
Roman empire. The amount of the wergild, as it
was called in England, depended upon the rank of the
deceased. The principle extended to injuries and even
insults ; and elaborate tables are found in the laws,
1 Barton. ** Univ. Cal. Pub.,** XV, 14-16.

198

PRIMITIVE LAW

prescribing these payments. The duty to pursue the
slayer involved the right to receive a share of the
blood-money ; and this again was co-extensive with
the liability to contribute to the blood-money adjudged
payable by a member of the kin, in accordance with the
principle of the solidarity of the kin. Thus very early
in the Middle Ages the blood-feud had begun to be
softened by means of the wergild, or blood-money.
But the Slav peoples long held out against so imworthy
a compromise. To this day the Slavs of Dalmatia and
Albania repudiate it, and stand for nothing less than i
a life for a life, to be obtained by means of the bloo,d-
feud, the more ancient method of revenge.^ Other
barbarians pursue the murderer before the proper
tribunal and accept compensation in accordance with
its award. The litigious character indeed and forensic
abilities of the Negro have popularized the native
tribunal everywhere, to such an extent that the blood-
feud recedes more and more into the background.
Among the Bushongo, a Bantu people of the Congp
basin, a few years since, a very able explorer was unable
to find a trace of the custom of blood-revenge. Legal
proceedings are taken against the person accused of
murder. He is tried, and if found guilty may be
sentenced to death. In that case he is allowed to be
lynched by the crowd outside the royal enclosure,
unless he be respited by the king. Drunkenness or
insanity, or infancy of the criminal are enough to draw
upon him the royal clemency. But the sentence is
not necessarily one of death : it may be only a heavy
fine payable to the king. Among the Eastern Bushongo

Hartland, Perseus," II, 426 ; Miss Durham, " J. R. A. I.,"

XL,»465.

PROCEDUBE

109

the punishment is hanging, and the executioner is the
heir of the victim of the crime ; but the kin may accept
a money compensation instead of pressing for the
murderer's death. Homicide not amounting to murder
is atoned for by a fine ; and in any case drunkenness is
considered a mitigating circumstance, and the capital
penalty is not inflicted.^ So far beyond the inexorable
Jugo-Slavs have these poor pagan Bantu advanced in
civilization.

^ Torday and Joyce, " Bushongo,** 76.

CHAPTER VIII

LEGISLATION

T he peoples whom we call "primitive,"

being nearest the presumed original conjjli-
tion of humanity, are proverbially intensely
conservative. Ample evidence of this is furnished
equally by reports of travellers, missionaries, and
scientific inquirers of the present day, and by compari-
son of their statements with those of the travellers of
past generations, back to the sixteenth and seven-
teenth centuries. Bosman, Brue, Barbot, and Merolla
who travelled in West Africa in the seventeenth century,
or the early years of the eighteenth, have left us
accounts of the customs and conditions of society there
which remain accurate with very little modification
to-day. The only changes which have been effected
have been caused by the advent of Europeans, and
their introduction of an alien religion, of tobacco, and
of additional food-supplies in the shape of bananas,
manioc, and maize. The alien religion has made but
very little way. The permanent change it has effected
in the native ideas and practice is only to be learned by
a minute examination ; on the surface it has produced
none at all. Bishop Codrington, comparing the state-
ments of Mendana, the Spaniard who discovered the

200

LEGISLATION

201

Melanesian islands in the latter part nf the sixteenth
century, with the customs and conditions of society
that he himself found four hundred years later in the
Solomon Islands, decides that they were essentially
unchanged, except that open cannibalism had ceased
to be practised in the islands of Florida and Ysabel,
and that on most of the islands bows and arrows had
given way to spears as weapons of offence.'

What is true of these two widely sundered popula-
tions is true of others in a similar condition of savagery
oj/ lower barbarism. From generation to generation
mey .follow the customs of the fathers. As a recent
scientific explorer says of the Tinguians, a pagan tribe
of Luzon in the Philippines : " The fact that the
ancestors did so-and-so, is sufficient justification for
performing any act for which they have no definite
explanation.** * In a corner of southern Mexico are
found communities of different tribes in close contact.
Aztecs, Otornis, Tepehuas, and Totonacs dwell in
adjacent towns, each community with its own language,
customs, and costume ; and there are in fact single
villages with two, three, or even four different tribes
living side by side, and each preserving its own customs,
language, beliefs, and even dress.® If we are tempted
to ascribe this to tribal jealousy or hatred, we have
only to turn to comparatively isolated peoples like the
Seri of the Californian gulf, or to wholly isolated ones
like the Polar Eskimo, to find the same phenomenon.
The latter people in particular do not hunt the reindeer,
though their neighbourhood teems with the animals,

' Codrington, 9. .

Fay-Cooper Cole, “ Pub. Field Mus. Nat. Hist.,*’ XIV, 26.

F. Starr, ** Proc. Davenport Acad.,** VIII, 79,

202

PRIMITIVE LAW

nor fish for salmon which abounds in one lake at least,
and which their conquerors under similar conditions
make an important part of their food-supply. Their
fathers neither hunted reindeer nor fished for salmon
— ^possibly they had abandoned these practices ages
before in other circumstances — ^nor do they ; but they
observe taboos and practise complicated customs and
ceremonies because their fathers did, and not because
there is any utility or reason in the observance or the
practice.^ It would seem as though habit alone were
not sufficient to account for this persistence,
inhabitants of the Moluccas in a less secluded situation, 2
and the Bechuana of South Africa ® in spite^of the
pressure of the white man for generations, adhere to
their ancient customs and regard any departure from
them as an insult to their forefathers, whom, in common
with many other peoples in the like stages of culture,
they worship. But whatever the cause — and other
causes may easily be suggested and are known to
operate elsewhere — this attachment to old custopi is
almost universal ; and it is not the less but the more
so, as a general rule, the deeper we probe down in
savagery.

On the other hand this adherence to the customs and
laws of their forefathers is by no means absolute. Its
appearance is deceptive to the people themselves.
Circumstances are always, if slowly, changing, often
so slowly that the people themselves are unaware of
the change ; and the laws and customs necessarily
change with the circumstances. When this is the case
the old superseded practices are forgotten, and the fact

1 Stcensby, 373. ® Riedel, 97.

Philip, “ Researches,” II, 118.

LEGISLATION

208

of the change, to say nothing of its details and direction,
passes beyond recall. The people believe that they
are still following the precepts and example of their
most remote ancestors, when the truth is that they have
long since abandoned them. At all events it is clear
that no people, however backward, is still in a primeval
condition. Even the slowest and most conservative
of savages have obeyed the law of change which rules
the entire human race in a movement on the whole
forward, though not without temporary and local
relapses due to special conditions, geographical, climatic,
^r oqcasioned by the contact and collision of alien
communities.

We are here only concerned with this secular process
as it has involved changes in the laws of peoples in the
lower culture. These laws are unwritten. They de-
pend for their validity on general acceptance and recogni-
tion. Formal changes are seldom made. There is no
authority universally acknowledged which has power
to enact fresh laws over the heads of the community,
or against its consent. The customs of the fathers,
coming down from an unknown antiquity, enlist on
their side every force of conservatism ; and in that
stage of civilization the forces of conservatism, strong
in every stage, are of overwhelming strength. As we
have just seen, in communities where the worship of
the dead is part of the vital institutions, as it is in so
many cases, the very idea of change in the customs of
the fathers and the laws they have handed down is
regarded with horror as dishonour, if not treachery,
to the gods. Among the Bantu Bangala of the Congo
basin, the still more horrifiying charge of witchcraft
and its inevitable punishment hang over the heads

204

PRIMITIVE LAW

of any who deviate in the smallest measure from the
customs and institutions of the tribe. ^ And in Australia,
where the natives are far less obsessed by the terror of
witchcraft than the African Negroes and Bantu, and
where ancestor-worship strictly so called does not
exist, they are equally bound hand and foot by custom.
What the father did, they must do. Any infringement
of custom within certain limitations is visited with
sure, and often severe, punishment." *

Yet the forces of evolution are, after all, too strong
for the most tenacious primitive conservatism. Chang^
are introduced and accepted by the people. These
changes must have been initiated by individuals. A
collectivity is but an organized aggregate of individuals ;
an3 the collective opinion and the collective will are
formed by the union and concurrence of individual
opinions, and individual wills. Sir Baldwin Spencer
and Mr. F. J. Gillen, whose emphatic statement of the
conservatism of the Australian Blackfellows has just
been quoted, go on to say that it is, notwithstanding;
possible for changes to be introduced. " At the present
moment, for example, an important change in tribal
organization is gradually spreading through the tribe
from north to south. . . . That changes have been
introduced — ^in fact are still being introduced — is a
matter of certainty; the difficulty to be explained
is how in face of the rigid conservatism of the native,
which may be said to be one of his leading features,
such changes can possibly even be mooted." They
come to the conclusion that " if one or two of the most
powerful men settled upon the advisability of intro-

1 Weeks. " J. R. A. I.," XXXIX. io8.

Spencer and GiUen. " Central Tribes,** ii.

LEGISLATION

205

during some change, even an important one, it would
be quite possible for this to be agreed upon and carried
out.” And they explain the process by means of the
frequent local meetings for the performance of their
sacred ceremonies, and of the larger meetings for these
and other purposes at which men from a wider area
attend and take part, and at which any changes locally
adopted, and any suggestions for change, would certainly
be discussed first by the headmen of local groups, and
if they were agreed, finally by the entire tribe. They
r^fer also to the tribal traditions as recognizing changes
and .attributing them to individuals — changes as great
as a ^ange in the method of initiation and in the
marriage-laws. The traditions in question are not to
be relied on for details : they are setiological tales ; but
they do recognize the fact of change, and that the present
laws require explanation and justification.^

This hypothesis of the procedure among the Arunta
and other tribes of the centre of Australia derives
confirmation from what is known of the procedure
among some of the aboriginal and hill tribes of India.
The Oraons occupying the plateau of Chota Nagpur
are an essentially conservative people. But they have
yielded from time to time to many civilizing influences,
notably in the social organization of the tribe.
“Whether the earlier steps in that process were for
the most part unconscious or not, there can be hardly
any doubt that in its later stages human mind and human
effort have played a considerable part. In our own
days we find in almost every Oraon village one or two
Bhuinhars [descendants of the first settlers who are
looked up to with respect and deference by the general
1 Ibid., 12 sqq.

PRIMITIVE LAW

body of the people] — ^sometimes comparatively younger
men — ^who, though not always the actual village head-
men, yet exercise considerable influence over their
fellow-villagers by reason of their superior intelligence
and personality. Such persons appear capable of
introducing a new social usage to supplement or modify
older usages. This is probably the way in which a
number of social usages of their neighbours, the Hindus,
have been gradually grafted on the social and religious
systems of the Oraons in many parts of the Oraon
country, and this is how in our days certain objectibp-
able practices are being given up." ^

The Nabaloi Igorot of Luzon were governq^ by a
council of the wisest men. If the natives may be
trusted, this council had power even to change the
customary law which they administered. This body
of customary law was ascribed to the people them-
selves " long ago." When a change was decreed, a
ceremony of drinking tapuy, a fermented drink made
from rice, was performed by the council, and the pro-
posed change of law was required to be submitted to
the people, and agreed to by a majority. The last
change, as stated by a native of about sixty years of age,
took place when he was a young man. It concerned the
punishment of a young man and an unmarried girl who
had violated the Nabaloi sexual morals. The sentence
for this crime was to forfeit a carabao, a cow, or a pig,
which they were condemned to kill, and which was
then eaten by the people. The council decided that
these animals were becoming few, and that it would
be well to change the law. Accordingly the people
gathered together and the majority approved the
1 Roy, “ Oraons,’* 433.

LEGISLATION

,207

decision of the council. The exact effect of the change
however is not stated. It seems too that every settle-
ment had a separate and independent council; so
probably the council and people of one settlement
were not bound by the decisions of another.^

The procedure of the Nabaloi Igorot on at least as
high a stage as the Oraon, and much higher than
that of the Australian Blackfellows, is similar, as
far as it goes, in originating from the wise elders,
and being confirmed by the assembly of the people
at large.

^Further evidence is furnished by the Bantu tribes

n the; south-eastern corner of Africa. They have

regular laws, though unwritten, which every one from
the highest to the lowest is bound to obey, and carrying
penalties for disobedience. The repositories of these
laws are the chiefs and their councillors, and indeed
the whole body of the people, “ for as the laws are
simple and few, every one is supposed to know them.'*
In some cases a law may be changed, or set aside by the
judffiial decision of a chief which is accepted and cited
as a precedent in much the same way as a “ leading
case " made by the judges in this country. But the
most usual course is that the chief first consults with
his councillors over any alteration or addition to the
laws that may be suggested. He then calls a meeting
of the tribe when it is fully discussed and finally decided
one way or the other. The chief has, of course, consider-
able influence ; but “the people have both directly and
indirectly a part in framing these laws." That changes
are not very frequent “ is illustrated by the fact that,
among the Kafir and Basuto tribes, the fundamental
1 “ Univ. Cal. Pub.,“ XV, 237.

PBIMITIVE LAW

ibs

laws are simiftur, though there may be slight modifica-
tions in immaterial points." But the point is that
they do take place, that they emanate from individual
suggestion, and that they are brought before an assembly
of the tribe for debate and decision. ‘

The similarity of this procedure to that hypotheti-
cally formulated by Spencer and Gillen for the Australian
tribes — ^but formulated, it must be remembered, after
long and careful and S3mipathetic observation of the
natives — is the more striking, inasmuch as the Kafir
tribes of Africa stand on a different plane of culture
from the Arunta, a much higher plane from every%
point of view. If we turn to North America,,, where
the culture of the native tribes is certainly very^iifferent
from both, though perhaps not on the whole higher
than that of the Kafirs, we find among the Osages and
Omaha, whose traditions and institutions have been
minutely studied in recent years by Miss Alice Fletcher
and Mr. Francis La Flesche, himself the son of an
Indian chief, definite traditions of legislation. These
two related Siouan tribes now located, the formk in
the State of Missouri, the latter in the State of Nebraska,
are not in their original habitat. They have reached
their present homes by various migrations from the east
of the Mississippi, and both have undergone many
vicissitudes which have left decisive marks on their
institutions. Of this they are fully aware, and their
sacred legends recount the various steps by which
their laws and organizations have developed. The
record of the Omaha is thus summed up by the authors
referred to : " Every acquisition that bettered the
condition of the people was the result of the exercise
1 ** Cape Nat. Laws Com.," Evid., 475 ; App., 43, 58.

LEGISLATION

209

of the mind. * And the people thought ' fa the preamble
to every change ; every new acquirement, every
arrangement devised to foster tribal unity and to
promote tribal strength, was the outcome of thought.
The regulation of the annual tribal hunt, wherein the
individual was forced to give way for the good of the
whole people ; the punishment of murder as a social
offence ; the efforts to curb the disintegrating war-
spirit, to bring it under control, to make it conserve
rather than disrupt the unity of the tribe — all were
tlie result of ‘ thought.' So too was the tribal organiza-
tioa itself, which was based on certain ideas evolved
from' thinking over natural processes that were ever
before their observation. The Sacred Legend speaks
truly when it says : ‘ And the people thought.' " ‘
The Sacred Legend of the Osages relates four distinct
stages in the development of the governmental organi-
zation of the tribe, from the time when the affairs of
the people were in a continual state of chaos and con-
fusion, and there were no fixed rules of action," down to
the completion of the organization, as it now is, or until
lately continued.*

The sacred legends cannot of course be accepted as
literal narratives of fact. They have doubtless assumed
their present form in comparatively recent times long
after most of the events which they relate can have
happened. But they do represent the tribal beliefs,
and the tribal consciousness that the laws and institu-
tions are far from primitive ; they embody the admission
that there has been change and progress throughout
the tribal history. Naturally, among a democratic

1 R. B. E.,” XXVII, 608.

“ Smith's Misc. CoUections," LXX, no.

14

210

PRIMITIVE LAW

people they lay no stress on the individual initiation
of the reforms, attributing them all to the action
of the community, to which finally they are in fact
due.

Usually it is probable that novelties are introduced
by the clash of two or more peoples. Then the change
may be effected by the subjugation of one people by
the other, as happened in the conquest of the autoch-
thonous inhabitants of Peru by the Incas. This has
constantly been the result of the occupation of the
territories of barbarous and savage tribes by a EuropeaK
power, in which a softening of ancient and brutal
customs has been forced upon the population ^flbju-
gated. Or it may be effected by the settlement in the
midst of one people by another people who ultimately
merge in the original population. This is what seems
to have taken place in the Melanesian islands, in which
Dr. Rivers has discovered traces of at least three
strata of institutions. Such a conclusion is only to
be arrived at by a very careful and minute analysis, of
the resulting culture. Still more obscure is the case
where changes have occurred by the mere contact of
peoples, without conquest or any appreciable or
permanent settlement or intermingling. They may
have been adopted by one people voluntarily imitating
another, or being driven to new arrangements in order
more effectually to organize for the purpose of meeting
the competition or hostilities set up by the contact.
This cause is doubtless answerable for many changes
in every human relation, as it undoubtedly is for the
introduction into different communities of a number of
material fabrics and processes, which have spread
inventions and discoveries into the remotest comers

LEGISLATION

211

of the world. On the other hand, it may be that
customs and institutions have been changed or aban-
doned in the course of migration, or by the alteration
of climate, such as is known to have occurred repeatedly
in various countries. Migration or an alteration of
climate would rapidly or slowly effect a change of
environment to which more archaic customs and
institutions might be inappropriate, perhaps even
injurious or impossible. To this cause has been
attributed the abandonment by the ancestors of the
.Polar Eskimo of reindeer-hunting and salmon-fishing,
which it is probable they used at one time to practise.
If liiey did, the tribal memory no longer preserves the
record. And this must have happened repeatedly
among people everywhere : the change which we infer
has taken place in the midst of a people with no means;
other than oral tradition, of recording it, and the oral
tradition in which it was for a time embedded has
perished in the competition with other more recent,
more dramatic, and more exciting memories,

^Vhere from whatever cause, save perhaps alien
conquest and compulsion, a people has adopted new
laws and institutions, or even new objects of material
culture, the influence of important personages has
always been weighty, if not decisive, as attested in
the case of the Australian and South African tribes.
Although the traditions of the Omaha and the Osages
do not refer to this influence, it must, from what we
know of North American Indian practices and suscepti-
bility to eloquence, have been as signally powerful
among them. Indeed, we need not go further than
our own countrymen in these modern days to recognize
the effect of the advocacy of a point of national policy

212

PRIMITIVE LAW

or a change of law by a trusted leader of energy, elo-
quence, and proved resource. But in all these cases
the change is in the long run dependent upon acceptance
by the whole community ; and the influence of indi-
viduals, however highly placed or however trusted,
is confined to their sagacity in perceiving and thinking
out what changes are necessary or desirable, and to
their skill in persuading their fellows of their sincerity
in exemplifying the changes they advocate. Rarely,
perhaps never, does this influence rise to the height of
that attributed to the more or less mythical Lycurgus,*
by which the entire constitution of Sparta was revolu-
tionized or created.

Religion has generally been a conservative, not an
innovating, force. Yet it is probable that occasionally
at least, it has played its part in introducing and
sanctioning legislation. The influence of the shaman,
or medicine-man, is by no means negligible in the lower
strata of civilization ; and there can be no doubt that
it has from time to time been called in aid of changes
in the laws. Without the co-operation of the medicine-
man, changes would again and again have been impos-
sible. More than once the oracles of ancient Greece
threw their weight on the side of innovation. ^

When the worship of definite personal gods had
developed, their authority was frequently invoked
by the law-giver for his legislation. The Mosaic law
in its present shape exhibits more than one change
made during considerable intervals of time. It is all
ascribed to Jahweh. Mohammed, legislating for the
Arabs, claimed to do so by the immediate command
of Allah, and imposed his code in the long run on
^ See, for example, Herod, I, 65 ; II, 52 ; IV, 161.

LEGISLATION

218

peoples whom he did not contemplate, and of whose
very existence he was ignorant. Zoroaster, the Persian,
by a similar device, long before him effected a similar
and equally lasting, though not equally widespread,
result. Hammurabi legislated for Babylonia in the
name of Shamash. Minos, the legendary King of Crete,
is said to have received his laws from his father Zeus.
At Rome the fabulous legislation of Numa was
dictated by the nymph Egcria and the other divine
ladies, whose amiable society the king enjoyed from
time to time. More authentic is the record of King
Alfred the Great. At the head of his code, formed by
colleipting, collating, and choosing, or rejecting, with
the advice of his witan, the laws of his predecessors in
Wessex, Kent, and Mercia, and by adding new laws
where he deemed necessary, he prefixes the Hebrew
decalogue and other divine laws, including from the
New Testament the authoritive letter from the Church
of Jerusalem, contained in the fifteenth chapter of the
4cts of the Apostles, and addressed to the Gentile
converts. The intention is clear by these devices to
ensure the acceptance and permanent adoption of a
code thus invested with the sanctity of religion.

This purpose has no doubt been facilitated by the
indistinction before alluded to as characteristic of the
institutions of the lower culture. The savage mind
more readily synthesizes than analyses, more easily
seizes the points of agreement, the likenesses between
two or more objects, than their differences. For the
savage, and a long way up into civilization, the policy
of a tribe is one and indivisible. Every part of it is
equally authoritative, because it is equally handed down
from antiquity. It is only we, observing and reasoning

214

PRIMITIVE LAW

from the standpoint of civilization, who analyse its
institutions under various heads — ^law, medicine, religion,
magic, social observances, and so forth. We may
distinguish between different kinds or subjects of law ;
we may sever religion from magic, and magic from
medicine ; the members of the community draw no
such distinctions. Such analysis is not possible to them.
They see nothing grotesque or incongruous in publishing
in the name of God a code combining ritual, moral,
agricultural, and medical with what we understand as
strictly juridical prescriptions, prohibitions of homicide, •
rape, theft, and fraud, with meticulous directions as
to food — ^what must be avoided, what may be oa^cn,
and when, and how, it must be prepared — the treatment
of disease, the method of tillage, the garb and ceremonies
of mourning for the dead. The same code in the same
Divine Name, and with equal authority, may make
regulations for the conduct of commercial transactions
and of the most intimate conjugal relations, as well
as for a complex and splendid ceremonial of divuje
worship. All these are part of the national institutions,
equally carrying the sense of obligation, and all actively
fostering the sense of solidarity ; therefore no impro-
priety can be felt in ascribing them to the same source.

When we look critically at such a code it becomes
obvious that the core of the legislation is a series of
taboos of a more or less primitive character which
have persisted into a higher stratum of culture. It
has been plausibly suggested that law originates from
taboos. This would account for the fact that almost
all early codes consist of prohibitions. It is as if the
law-giver were preoccupied by the attempt to prevent
the people from going astray rather than by the effort

LEGISLATION

215

to guide them aright. But it must be observed that
the taboos appearing thus in a code are for the
most part concerned with ritual prescriptions, which are
thus found embedded in a body of laws of a more social
and ethical character. Such a code in fact, is a collection
of the ancient customs of the community, diverse in
origin, and already gradually and imperceptibly modi-
fied from time to time, together with the law-giver's
conscious amendments. Religion, as is natural in a
code attributed to a divine origin, occupies a consider-

able share of the bulk, whether we reckon it quantita-

tively, or qualitatively ; and religion at this stage has
nod by any means freed itself from its primeval connexion
with* magic. But the whole of a primitive people's
customs do not deal with the supernatural. In fact,
religion and morals are unthinkable apart from the
social state ; and the social organization therefore is
the beginning of law. The religious organization ex-
pressed in negative and positive commands is not the
origin of law but a development, though an early
development, and one which is constantly striving to
overshadow the rest.

On the other hand, so close is the association between
law and morals that they are in the early stages with
difficulty distinguished. The earliest human aggre-
gation, which we may call a horde, or an organized
community, lies so far back in the ages, and is so distant
from us, not only in time, but in culture, that its very
existence is only a speculation, and of its circumstances
and form we have no evidence whatever. But we may
surmise that its constituent members, little above the
brutes as they may have been, must have regulated
their conduct towards one another by some rules.

216

PMMmVE LAW

These rules were possibly derived from their pre-
human experience (Compare the conduct of c4ttle,
deer, and flocks of birds), and may have been only half-
conscious. They must however have sufficed to keep
the peace within the horde, and constituted a body of
ethics appropriate to that stage. Law and morals
were identical. They could not remain identical long.
A human society, however slowly progressive, which
does progress, carries with it a progressive ethic. That
ethic is the result of experience, and of a constantly
widening sympathy ; and it outruns the tardier step^ ,
of custom and definite law. Its existence apart from
law may remain long unrevealed. But amid the
countless experiences of human nature sooner or 'later
it clashes with the general custom, and men become
aware of the unsuspected gulf between law and moral
feeling. Nursing an ideal unknown to law, it becomes
one of the chief agents in the gradual changes under-
gone by the law. Its existence is established as distinct
from, and reaching beyond, law; and in its activities,
in spite of all conservatism, lies the hope of the advance
of civilization.